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Justices May Soften Campaign Ad Law
Arguments Over Anti-Clinton Movie Peppered With Free-Speech Issues

By Robert Barnes
Washington Post Staff Writer
Wednesday, March 25, 2009

The Supreme Court yesterday appeared ready once again to trim the reach of the McCain-Feingold campaign finance reform act, this time at the behest of a conservative group that produced a withering 90-minute political film called "Hillary: The Movie."

And that was even before the government's lawyer rattled the justices by asserting that Congress possessed the power -- hypothetically -- to ban some political books before an election

After a rollicking one-hour argument, it seemed that the question was whether a majority of the court wanted to use an ax or a scalpel to whittle the law, Congress's embattled attempt to limit the electoral influence of corporations, unions and special interest groups. It is known formally as the Bipartisan Campaign Reform Act of 2002.

The act says such groups cannot use money from their general treasuries for "any broadcast, cable or satellite communications" that refer to a candidate for federal office within a certain time frame before an election.

In the past, that has meant 30-second to one-minute campaign ads. But a lower court said the same rule applied to the conservative Citizens United's production of a 90-minute movie on Sen. Hillary Rodham Clinton (N.Y.) as she pursued the Democratic presidential nomination.

The three-judge panel applied a test written in 2007 by Chief Justice John G. Roberts Jr. that an ad is covered by the law when it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

The court's four most liberal members, who have in the past been the most supportive of the law, all but mocked Citizens United attorney Theodore B. Olson's assertion that the film was meant to inform, educate and even entertain audiences.

"It is not a musical comedy," said Justice Stephen G. Breyer.

Justice David. H. Souter read quotes about Clinton from the movie: "She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander in chief."

He paused. "I mean, this sounds to me like campaign advocacy."

Olson, who as President George W. Bush's solicitor general had argued for the law when it was upheld by the court as constitutional in 2003, offered a different take as a private lawyer.

"Participation in the political process is the First Amendment's most fundamental guarantee," he said. "Yet that freedom is being smothered by one of the most complicated, expensive and incomprehensible regulatory regimes ever invented by the administrative state."

But his task seemed easier than that of Deputy Solicitor General Malcolm L. Stewart, who quickly found himself pulled into a discussion of something at issue in neither the law nor the case: whether the government could prevent using corporate or union funds to publish a book that mentioned a candidate for office within the election time frame.

Stewart said that it could, though he quickly added that there was an exception in the law for the media, and that the law said nothing about books.

"That's pretty incredible," said Justice Samuel A. Alito Jr.

And that set off a search for hypotheticals. Justice Anthony M. Kennedy wondered about Kindle, the electronic device. Roberts bore down.

"If it has one name, one use of the candidate's name, it would be covered, correct?" Roberts asked.

"That's correct," Stewart replied.

"It's a 500-page book, and at the end it says, 'And so vote for X,' the government could ban that?" Roberts asked again.

Stewart said again that he meant the restrictions on using corporate funds for what the law calls "electioneering communications" could come into play.

Kennedy and Justices Antonin Scalia and Clarence Thomas have said in past decisions that they did not think the restrictions on speech in the Campaign Reform Act could be squared with the First Amendment. But Roberts and Alito, at least in the 2007 case, were not ready to go that far.

If that remains their view, there could be two more-limited ways to rule for Citizens United.

One was advanced by Roberts, who indicted that he thought Congress had not considered documentaries when enacting the restrictions. He appeared skeptical of Stewart's reply that the length of the material did not matter and said that the court had never considered the question.

The other was offered by Scalia, who noted that Citizens United had wanted to make the film available on cable systems via video-on-demand, where viewers would have to make an affirmative decision to order it.

Maybe the law should allow the interest groups' speech when it is directed only at those who want to hear it, Scalia suggested.

"Do you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something," Scalia asked, "but also a hearer who wants to hear what the speaker has to say?"

The case is Citizens United v. Federal Election Commission.

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