Supreme Court to Revisit ‘Hillary’ Documentary

WASHINGTON (By Adam Liptaka, NYTimes) August 30, 2009 — The Supreme Court will cut short its summer break in early September to hear a new argument in a momentous case that could transform the way political campaigns are conducted.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.

The court’s order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.

To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.

“Criminalizing a movie about Hillary Clinton is a constitutional desecration,” Mr. Abrams said.

Most of the rest of the liberal establishment is on the other side, saying allowing corporate money to flood the airwaves would pollute and corrupt political discourse.

“This is rough business,” said Fred Wertheimer, a veteran advocate of tighter campaign regulations. “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was the McCain-Feingold law bans corporate money being used for electioneering.

A lower court agreed with the F.E.C.’s position, saying the sole purpose of the documentary was “to inform the electorate Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world and viewers should vote against her.”

At the first Supreme Court argument in March, a government lawyer, answering a hypothetical question, said the government could also make it a crime to distribute books advocating the election or defeat of political candidates so long as they were paid for by corporations and not their political action committees.

That position seemed to astound several of the more conservative justices, and there were gasps in the courtroom.

“That’s pretty incredible,” said Justice Samuel A. Alito Jr.

The discussion of book banning may have helped prompt the request for re-argument. In addition, some of the broader issues implicated by the case were only glancingly discussed in the first round of briefs, and some justices may have felt reluctant to take a major step without fuller consideration.

The question of what Congress may do to regulate books is a hypothetical one: the relevant law, the Bipartisan Campaign Reform Act of 2002, more commonly called McCain-Feingold, applies only to broadcast, satellite or cable transmissions. That leaves out old technologies, like newspapers and books, and new ones, like the Internet. But the constitutional principles involved, some of the justices suggested, ought to apply regardless of the medium.

In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, “A campaign document in the form of a book can be banned.”

The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials. But a brief supporting Citizens United filed in January by the Reporters Committee for Freedom of the Press questioned whether the government should be making decisions about what is and is not news.

“ ‘Hillary: The Movie,’ ” the brief said, “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.”

In a measure of the importance of that group’s support, Theodore B. Olson, who represents Citizens United, referred twice to the brief at the argument in March. (He stumbled both times, though, calling the group the “Reporters Committee for Freedom of Speech” and the “Reporters Committee for the Right to Life.”)

After the argument, Mr. Wertheimer pushed hard to persuade the group to alter its stance.

“He e-mailed, he memo-ed, he advocated, he called a couple of people who were donors, and he cost us some money,” said Lucy Dalglish, the executive director of the committee.

But the group filed a second brief supporting Citizens United in July. “I got fair treatment,” Mr. Wertheimer said, “and they basically disagreed with my position.”

The disagreement echoes one within the civil rights community, said Burt Neuborne, the legal director of the Brennan Center for Justice at New York University School of Law and a former official of the A.C.L.U.

Mr. Neuborne said he disagreed with the A.C.L.U.’s longstanding position regulation of corporate campaign spending may violate the First Amendment. The A.C.L.U.’s position was the product of “a huge fight” within the group, he said, adding “it never was more than a 60-40 split on the board.”

The Brennan Center filed a brief supporting the government in the case, Citizens United v. Federal Election Commission, No. 08-205, while the A.C.L.U. filed one supporting Citizens United.

Mr. Neuborne and four other former A.C.L.U. officials took a middle ground, urging the court to rule narrowly to protect the documentary without making a major constitutional statement.

Indeed, it would not be hard for the court to rule in favor of Citizens United on narrow grounds. The court could say the film was not the sort of “electioneering communication” McCain-Feingold, which mostly concerned television advertisements, was meant to address. It could say communications people had to seek out might be treated differently from uninvited advertisements. Or it could say Citizens United was not the sort of corporation that can be regulated.

But the request for re-argument suggests the court is on the verge of bolder action.