Anti-Hillary Movie Tests Legal Limits
Editor’s Note: An unusual U.S. Supreme Court hearing on a movie attacking the political career of Hillary Clinton may test the limits on how far federal law can go in restricting the use of corporate money to influence elections.
In this guest essay, writer Michael Winship assesses the important issues that the case addresses:
The envelope, please. And the winner for "most influential motion picture in American politics" is... “Hillary: The Movie.”
Never heard of it? Not surprising - very few people saw it in the first place. But “Hillary: The Movie” - a no-holds-barred attack on the life and career of Hillary Clinton intended for viewing during her presidential campaign - could prove to have an impact on the political scene greater than even its producers could have dreamed.
In the world of money and politics, “Hillary: The Movie” may turn out to be the sleeper hit of the year, a boffo blockbuster. Depending on the outcome of a special Supreme Court hearing on Sept. 9, this little piece of propaganda could unleash a new torrent of cash flooding into campaigns from big business, unions and other special interests.
“Hillary: The Movie” may turn out to be Frankenstein: The Monster.
The film was created by a conservative group called Citizens United. They wanted to distribute the film via on-demand TV and buy commercials to promote those telecasts, but because the film was partially financed by corporate sponsors, the Federal Election Commission said no, that it was a violation of the 2002 Bipartisan Campaign Reform Act - McCain-Feingold - which restricts the use of corporate money directly for or against candidates.
Citizens United appealed their case all the way to the Supreme Court, where it was first heard back in March. But the court did an unusual thing. They asked for more time and ordered a new hearing and new arguments, almost a month ahead of the first Monday in October that usually marks the official start of the court's annual sessions.
The reason for the special hearing is to more broadly consider the constitutionality of McCain-Feingold and campaign finance reform in general; whether it denies a corporation the First Amendment right of free speech.
Those who believe that a corporation is being deprived of a fundamental right feel it should be treated no differently than any individual citizen. Those opposed believe that corporations do not hold the same rights as citizens and that their deep pockets - via political action committees (PAC's) and other avenues of participation - already give them clout and influence dangerous to the health of a democracy.
All of this comes, as The New York Times reported, "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."
More than 50 friend of the court (amicus) briefs have been filed, an unprecedented number for a First Amendment case. The legal wrangling has made for some strange pairings.
"The American Civil Liberties Union and its usual allies are on opposite sides," the Times noted, "with the civil rights group fighting shoulder-to-shoulder with the National Rifle Association" in support of Hillary: The Movie's corporate sponsors.
"Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse."
One of those who will argue on Sept. 9 for overturning the McCain-Feingold limitations is the redoubtable Floyd Abrams, the ardent and vocal defender of free speech who has argued many landmark First Amendment cases before the Supreme Court.
On the other side is Trevor Potter, founding president of the non-partisan Campaign Legal Center and a former chairman of the Federal Election Commission. General Counsel to John McCain during his presidential campaigns in 2000 and 2008, Potter was involved in the drafting of McCain-Feingold and has filed one of the amicus briefs in its defense.
Both appear on the current edition of public television's “Bill Moyers Journal,” interviewed by my colleague Bill Moyers.
"The question here is to what extent, if at all, can unions and corporations spend their money to put ads on or to speak out themselves in their own name about political matters, including even who to vote for," Abrams said.
"I don't think that we should make a distinction on First Amendment grounds in terms of who's speaking. I think that whether the speaker is an individual or an issue group or a union or a corporation, if anything, the public is served, not disserved, by having more speech."
Trevor Potter disagreed. "Corporations exist for economic purposes, commercial purposes," he said. "And the notion that they have full First Amendment free speech rights, as well doesn't make any sense for this artificial creation that exists for economic, not political purposes...
"Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere when we're deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy."
The Supreme Court could rule just on Citizen United's “Hillary: The Movie” case, but the call for the special session and the current composition of the court would seem to indicate that the decision might completely overthrow McCain-Feingold.
Three thousand corporate PAC's registered with the Federal Election Commission in 2007 and 2008 spent more than $500 million for political purposes.
And we've seen the hundreds of millions big business already has spent to battle the Obama administration's domestic agenda. A 5-4 decision in favor of corporate interests could mean much, much more money from multinational corporations overwhelming our electoral process.
Think of the Sept. 9 hearing as a sneak preview of coming attractions.
Michael Winship is senior writer of the weekly public affairs program “Bill Moyers Journal,” which airs Friday night on PBS. Check local airtimes or comment at The Moyers Blog at www.pbs.org/moyers.
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