Congress, Constitutional Law, Justice, Politics, Society

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”

  2. Well Burnt,

    You sound toasted. To a crisp. I have met some that I could have sworn might have been related to you. Good luck in your court case. who knows divine intervention may come just your way.

  3. First let me say This Is No Joke and involves the recent US Supreme Court decision that allows corporations to have unlimited resources to buy off our religious or political elected officials and this affects US all.

    I am writing you because, I am Satan, Risen Reborn and in the Flesh of a regular Christian woman. I need a lawyer to represent me in a case against my employer, now before an US District Court judge in Maryland but will probably end up in the Supreme Court. I intend to use a King James Version of the Holy Bible as a fully, legal and binding contract and promise passed down to US citizens by our constitutional forefathers and Complain of Mass Religion Fraud brought about by the word no in the first amendment. “Congress shall make no law respecting an establishment of religion or…” The word no clearly denies US a: Choice, Vote, and Even a Decent Respect of Redress, especially since even the courts used the Bible as an Instrument of Law and all US presidents swore swear their oaths upon it. I am sure you can understand how difficult it is to find a lawyer or person who believes me.

    I don’t think anyone has ever come before a judge claiming to be Satan, the Daughter of God, Sister Spirit and espoused Bride of Jesus Christ before, and I can prove that I have been sent by the Lord. (Rev. 2:24, 3:9, 19:7-10, 21:9 and 22:16-17). I Have to use the Bible as my Proof and Warn Yall that Time Is Short. I was thrown down with Great Anger By GOD and SHe’s Really Pissed Off. So, Believe it or Not; I Satan and when I go to court, I’m willing to put my hand on a Bible and Promise to tell the whole truth and nothing but the truth so help me God; this time.

  4. I just posted the link folks I tend to let people smarter than me disect it. Thats why I didn’t comment. You guys are doing my homework.

    That poll was conducted more than three months ago.

    Good find Elaine!!!! It pays to read the small print, so really this poll means nothing because the mood of the country could have swung the other way.

  5. More Information about the Gallup Poll article I quoted from in my previous comment:

    Survey Methods

    Results are based on telephone interviews with 1,023 national adults, aged 18 and older, conducted Oct. 1-2, 2009, as part of Gallup Daily tracking. For results based on the total sample of national adults, one can say with 95% confidence that the maximum margin of sampling error is ±4 percentage points.

    ***************

    That poll was conducted more than three months ago.

  6. Bdaman–

    Quoting from the article you provided the link to:

    “More specifically, 61% of Americans think the government should be able to limit the amount of money individuals can contribute to candidates and 76% think it should be able to limit the amount corporations or unions can give.”

  7. AN,

    I think as a matter of expecting the good citizens to appear when they are summoned for Jury Duty he should have dropped everything and gone. It is up to the Court and Attorneys to excuse him. This is bad publicity that he can expect to come back and bite him, regardless if Bush did it or not.

    I think that he as a Democrat should hold himself to a higher standard. But we can see that he is as bad or worse than Bush.

  10. “If you are suggesting that we have (already) descended to a degenerated state of government where free speech is paramount because good government is an oxymoron, I might agree.”

    I am. The information we receive from those who are close to the seat of government, and those whose duty it is to sound the alarm, is far from a complete or honest representation of the facts.

    I like FOX NEWS. Not because they provide the complete truth, but because they’re at least honest about their partisan bias. (Truth be told, I get most of that type of information from the Sunday morning shows. All of them.)

    I have close friends on both sides of the aisle. I know them well enough that we can discuss political issues without expressing outrage when we disagree. The doctor’s perspective is just as important as the patients.

    I’m not afraid of speech I don’t agree with, as much as I am the silencing of that speech.

    I think every time a political ad is bought, it should be (included in the price) the same amount of time for opposing information. I wouldn’t require the opposing viewpoint to be presented, but I would make sure that the opportunity for such exists.

  11. Pingback: Turley on “The Hillary Movie Case” « Very Important Stuff

  12. Duh @ 2:59 “And I would suggest that without free speech, good government, would be what that government tells us is good.”

    Duh, I was well aware that the obverse cold be suggested. I’ll not pretend to know at base which is more fundamental. But I will reiterate that this majority has far more of a political agenda than an interest in wrestling with the difficult issues of fidelity to the law. My 2 cents. Good government ensures the environment in which free speech is meaningful. If you are suggesting that we have (already) descended to a degenerated state of government where free speech is paramount because good government is an oxymoron, I might agree.

  14. If a corporation can be put to death “involuntarily dissolved” for the minor infraction of failing to pay state franchise fees, if they are in fact the equivalent of “natural persons” could they not be put to death for criminal activities, ecological terrorism (Exxon in Alaska), condoning murder(XE), engaging in slavery (garment manufacturers in South America, Asia and even Los Angeles)?

  15. Correction:

    This was part of Rehnquist’s dissent; should be part of the whole quote:

    Rehnquist Dissenting: “There can be little doubt that, when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. [Footnote 4/3] Grosjean so held, and our subsequent cases have so assumed. E.g., Time, Inc. v. Firestone, 424 U. S. 448 (1976); @ 376 U. S. 761-770 (1976). Although the Court has never explicitly recognized a corporation’s right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.”

  16. Mespo: “Interesting points all, but again I am unsure how corporations are not protected by the First Amendment as an association of individuals like trade unions enjoy.First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978) thinks they are so protected. That clearly was the rationale for the majority in this decision. If so, why do they enjoy any lesser free speech protections?”

    In the interest of brevity…

    Bellotti “held that states cannot prohibit corporations from spending money to express their views on referendum questions even if such issues are not directly related to their business interests.” (Nowak, Rotunda, Con Law 5th ed. p. 1083)

    The Bellotti Court did go on to say: (and I’d double indent this quote here if someone showed me the proper coding…)

    “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)

    Mespo: “Surely it can’t be their vast economic resources as that would also affect Gates, Buffett, et als…”

    See note 26 above.

    Mespo: As the majority said,“’…resources amassed in the economic marketplace’ [are irrelevant to the protections afforded by the Amendment]. First Amendment protections do not depend on the speaker’s ‘financial ability to engage in public discussion.’” [citations omitted]. Isn’t your argument really based on your rejection of this premise?

    No. I said, or my premise is -if you will, that corporations, being creatures of statute, have no inalienable rights and are not parties to the social compact. The implication being that whatever commercial speech rights AFFORDED/BESTOWED upon them would be incidental to their business interests (i.e. the very purpose of their existence). To wit, denying a corporation like the NY Times the right of free speech would defeat the purpose of running a newspaper.

    There can be little doubt that, when a State creates a corporation with the power to acquire and utilize property, it necessarily and implicitly guarantees that the corporation will not be deprived of that property absent due process of law. Likewise, when a State charters a corporation for the purpose of publishing a newspaper, it necessarily assumes that the corporation is entitled to the liberty of the press essential to the conduct of its business. [Footnote 4/3] Grosjean so held, and our subsequent cases have so assumed. E.g., Time, Inc. v. Firestone, 424 U. S. 448 (1976); @ 376 U. S. 761-770 (1976). Although the Court has never explicitly recognized a corporation’s right of commercial speech, such a right might be considered necessarily incidental to the business of a commercial corporation.

    Since you cited Belloti, let’s take a looksie at the points raised by Rehnquist in his dissent:

    “It cannot be so readily concluded that the right of political expression is equally necessary to carry out the functions of a corporation organized for commercial purposes. [Footnote 4/5] A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as Page 435 U. S. 826 an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist. So long as the Judicial Branches of the State and Federal Governments remain open to protect the corporation’s interest in its property, it has no need, though it may have the desire, to petition the political branches for similar protection. Indeed, the States might reasonably fear that the corporation would use its economic power to obtain further benefits beyond those already bestowed. [Footnote 4/6] I would think that any particular form of organization Page 435 U. S. 827 upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation. …. I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries.” (Bellotti, 435 U. S. 765 at 825-828)

    N.B. I have not read the full opinion yet; but I’m champing at the bit to see the outcome deterministic reasoning employed by the majority.

  18. “I would suggest that without good government, protected by the court, free speech becomes a theoretical issue, almost a luxury.”

    And I would suggest that without free speech, good government would be what that government tells us is good.

  20. Prof. Turley correctly notes that the American system is broken, opining that ways to fix it include breaking the strangle hold of the ongoing corrupt two party charade.

    Then he concludes with regard to the decision: “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.”

    I would suggest that without good government, protected by the court, free speech becomes a theoretical issue, almost a luxury.

    I would also suggest, as to orientation and motives of the majority, Prof. Turley’s analysis is inapposite as much as would a scholarly analysis be anything but laughable for, say, Bush v. Gore, good governance. Face it, the motivation is political and ideological, and does not nearly rise to the level of seriousness that Prof. Turley outlines. The majority doesn’t deserve his help in putting lipstick on this pig.

    I must say, if I had to be gullible, I am touched by the majority’s kumbaya attitude toward free speech.

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