Supreme Court Rules 5-4 Against Campaign Limitations in The Hillary The Movie Case

In a decision that could have a dramatic effect on the upcoming elections, the Supreme Court has ruled 5-4 in favor of a group of conservative filmmakers in the “Hillary: The Movie” Case. The result of the decision could increase spending for corporations, unions, and nonprofits in the election. I previously discussed the case and the likelihood of this 5-4 ruling. I discussed the case on this segment of Countdown. Other commentators like Glenn Greenwald have also weighed in on the case with similar views, here.

The ruling went down the ideological line with Justice Anthony Kennedy giving the majority the fifth vote and then writing the opinion. He stressed that “[o]ur nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” That is the sentiment that motivated another of civil libertarians and free amendment advocates to support the conservative litigants. This is a case that split the free speech community with the ACLU and free speech advocates like Floyd Abrams supporting the conservative filmmakers in this case.

While there is much speculation on the impact on the upcoming elections, it is notable that two provisions were upheld by the Court (with only Thomas dissenting). The Court upheld the disclosure requirement that requires corporations to file a report with the FEC on contributors of $1,000 or more (when the corporation spends more than $10,000 a year to produce such ads. It also upheld the disclaimer requirement that requires that the producers say who is responsible for the ad if it not authorized by a candidate or a political committee.

However, the Court overturned critical holdings in Austin v. Michigan Chamber of Commerce (upholding restrictions on corporate spending to support or oppose political candidates) and McConnell v. Federal Election Commission (upholding the central provisions of the McCain-Feingold campaign finance law). The result is seismic for opening up elections to corporate spending. It is also a case of Justice Kennedy finally achieving a majority after voting against these limitations in 1990. While Justice Sandra Day O’Connor later changed her position to uphold campaign financing, Kennedy has remained firm that such limits run counter to the first amendment. He believes that public policy can be achieved through transparency provisions: “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

The opinions offer strikingly different views of the First Amendment with Stevens writing: “The basic premise underlying the court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation.” While that glittering generality has rhetorical appeal, it is not a correct statement of the law.”

Both the Kennedy and Stevens opinions are very compelling and fascinating. The Kennedy decision does raise some questions over the sweep on his first amendment views and why any limits on campaign finances are constitutional. It also reintroduces the question of why corporations are treated as persons for the purposes of the first amendment. That latter question could now be the focus of a fight over a constitutional amendment. My opposition to a constitutional amendment is that I believe that there are more important political reforms to the system that need to be made. I do not believe that it is the money that has caused our political system to become so dysfunctional. It is also important to note that these restrictions were imposed on unions and non-for-profit corporations. The result of the restrictions, in my view, were disturbing line drawing as to what the government considered electioneering and what the government considered legitimate documentary work as with the distinction between Hillary the Movie and Fahrenheit 911.

There is a push now for a constitutional amendment, which I would not favor. It may be time for a paradigm change in how we think about this problem. We have a political failure in our system that is sucking the life out of the Republic. The monopoly of the two parties on power produces endless loops of corruption and conflict. The problem in my view is structural not financial. We need to break the domination of incumbents and the two parties. This can be done with fundamental changes in our primary system, eliminating the electoral college, creating new opportunities for third parties, and other reforms.

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 the 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 raised 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 my Supreme Court 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.

Seth Waxman, who defended 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 argued that the law has created a “chilling effect” on 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 predictably voted with the majority. Sotomayor voted as expected the same way as Souter to uphold the law.

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 was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case. However, I do consider this to be one of the most difficult free speech cases to hit the court in decades. Many of my friends are on the other side and I understand that this is quite a blow. People of good faith can disagree on such issues. It really broke along a fine line. It depends on whether your gravitational point tended to fall along the free speech line or the good government line. It is a rare case where those lines ran perpendicular rather than parallel with each other.

For the trailers of the movie, see below:

You can read the opinion at this link.

For the full story, click here.

254 thoughts on “Supreme Court Rules 5-4 Against Campaign Limitations in The Hillary The Movie Case”

  1. Pingback: Legal Articles
  2. So therefore JT, Bob Esq.and Mike;

    If A Pain ND Ass such as myself comes forth; asking the USSC for saftey and protection for Native American Indian Religion As Christians; Would Tiitle VII Cover, a Gender of People denied a vote, choice or decent respect against People like “The Freedom From Religion Foundation, V. The Congress of the US of America Civ. # 07356(SM) Many prominent republicans named ie., Mike Pence, Joe Wilson, Marsha Blackburn, Jeb Hensarling said they are for the Protection of the words “UNDER GOD” in the Pledge of Alliance, along with so many other including our Nation’s Motto “In God We Trust”.

    Well I sure as Hell need protection from those who dont believe in GOD such as Corporations and Congressmen given all power to make laws and wars but Defraud We the People with claims they know GODs name but just use it constanly in vain. Really what the Supreme Court Did is a Shame Before GOD, and We The People.

    Peace out

  3. Mespo: “Not sure what you meant by “ring and run” with respect to the Bellotti case, but Justice Lewis Powell (writing for the majority) clearly says that corporations have free speech rights both for their benefit and the benefit of the public at large”

    I’m well aware of the holding in Bellotti, and I did point out that the ‘rights incidental’ arguments, with which I agree, were from the dissent. But the point you continually gloss over, as did the Court in an unabashed display of hypocrisy and judicial activism

    to wit:

    was this point made clear by the Bellotti court:

    “our consideration of a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” (Bellotti, 435 U. S. 765, 787, n26 (1978)

    People like you & Glenn Greenwald, et. al., pat yourselves on the head by making the hasty generalization that prior decisions recognizing CERTAIN corporate first amendment rights somehow necessitates FULL first amendment rights for corporations.

    However, people like me, and as I suspected Mike Appleton, question your reasoning. For example, if we asked you to, metaphorically speaking, how shall we say, run a title search on both the rights of the individual and the rights of corporations to confirm the alleged equality between the two, as fallaciously alluded to in Santa Clara & progeny, your desire to maintain that your resolution is correct would tempt you into acts of intellectual dishonesty.

    As I and Mike pointed out, corporations have no inalienable rights. And why is that important? Because making the social compact non-illusory necessitates the existence of inalienable rights. And the last I checked, in that great equation stating that rights confer power, not vice versa, corporations were never included in the set of ‘beings endowed by their creator’ with all rights. IOW, the argument that corporations fall under the protection of the 14th amendment, that corporations have rights in the same way as individuals do, necessitates the contradiction of social compact established here between individuals and the state. Your argument necessitates the contradictory theory that rights are conferred by the constitution upon people and corporations ‘equally.’ You don’t get any more ‘Un-American than that.

    Therefore Mespo, that’s why I cited the dissent’s ‘rights incidental’ argument as being correct; notwithstanding the majority’s oversight.

  4. When I think about the corporations being able to spend freely, and without limit, I wonder what influence they will have.

    Technically, it is still the individually registered voter that makes his or her way to the polling place and punches or ex-es a ballot, that puts people in office.

    A corporation can try to influence you with propaganda and ads. But they cannot vote for you.

    So, the fear of influence by the money spent by the corporations – regardless of the free speech arguments – doesn’t seem valid.

    An intelligent, competently critically thinking country of voters should be able to wade through all of the political ads and propaganda, make up their own minds, and cast their ballots in a way that would be beneficial to the country.

    THAT SAID… In my humble opinion, many of this country’s voters may not be able to boast of being intelligent or capable of good critcal thinking or reason.

    But we cannot legislate intelligence. Should we go back to the days of only allowing the white, male, landed gentry to vote? Of course not.

    This country is supposed to be one man (woman) one vote.

    And if many of the voters refuse to do their homework; watch their slanted cable news programs and get brainwahsed with its talking points; and care more about the Home Shopping Network than C-Span, we cannot stop them.

    Intelligence, a world view, and the ability to critically think is subjective, and not subject to legislation.

    As a dislaimer, I too, believe, that the Supreme Court ruling… well… sucks. I am very concerned about the upcoming elections – especially the votes cast by those who were postive that a Public Option was going to kill grandma.

    I am not educated in Law, so I’m trying to understand the issue of a corporation being treated as a person. That does not make sense, as the people that MAKE UP that corporation ALREADY HAVE the rights of all individuals (like me) – and so I see no reason for a constitutional standing of a corporation. Obviously I’m missing something.

    I have also not heard if individual donations will also be unlimited… or was the ruling strictly for corporations. And if that is so, are coproations not now “more equal” than I am?

    Thank you for this website. I enjoy Mr. Turley’s appearences on MSNBC. His exacting commentary reminds me of Sam and Toby going at it on West Wing… Sam being the Letter of the Law, and Toby being the Spirit of the Law.

  5. While I wholeheartedly agree with Professor Turley’s statement that a good part of the problem with our current political landscape is a two-party system, I wholeheartedly disagree with him that money isn’t the larger problem; it is a HUGE problem.

    Giving corporations,whether they be for-profit, non-profit, or unions, the same protections as individual citizens goes against everything the Framers stood for; I hardly think they would be in favor of equating corporations, with seemingly endless coffers, with the people, most of whom have limited coffers.

    SCOTUS disregarded years of legal precedent with this ruling, which, in my mind, is a true miscarriage of justice. This decision reeks of judicial activism, the very thing the majority claims to abhor.

  6. By;ron:

    Why would you Assume that? I’m just a born sinner whose been whose been forgiven for my sinning; just like any other Christian. Jesus Christ saved a wretch like me from a Terrible Fate. I heard told that We All Fall short of the Glory of God. Well actually I took a Dive and could have been a real contender and thats why when God sent me to try and tempt him in the wilderness, to told me to get behind him. So you really should have been expecting Satan to show up. The Death of Jesus upon the cross Defeated me and put a big stake in my heart. So he Cast me into a Bed, Healed Me and told me to play dead for about 1000 years. Then one day he came as a thief in the night and we eloped.

    So I already told you; Im just a Plain American Indian Negro and Assimilated Christian woman, who was Chose to come forth in the name of the Lord.

    So my job is Three fold; although I am your fellow servant I also have to Warn You To Repent; Collect His Rent and send out the invitations to a Weeding and Wedding designed to End All Time. I Promise it Will Be To Die For!

    Jesus just figured; the best way for Him to get the Word out was to Tell A Woman she’s getting married to the King of Kings. So His Black Widow Spyder decided to tell My Angel Lou, Oprah and You using the World Wide Web. So you can write me down in History with your Bitter Twisted Lies; You can trode me into the very dirt; but like Dust Still I Rise. I also know why the cage bird sings. So I sing because I’m Happy and I Sing Because I’m Free, cause His eye is on the sparrow, I know he watches me. So to quote a well known Republican and King alls I can say is this

    Free At Last; Free At Last; THANK GOD ALMIGHTY, I was Born Free, Black and Last. Especially since it the Last who shall be First to Inherit the Kingdom.

    Peace out

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