Citizens United used 'Hillary: The Movie' to take on McCain-Feingold

By Philip Rucker
Washington Post Staff Writer
Friday, January 22, 2010; C08

David Bossie, a veteran Republican campaign operative who made his mark investigating the Clintons, thought his group could offer a conservative answer to Michael Moore's successful films. After Moore's "Fahrenheit 9/11" premiered in 2004, Bossie's Citizens United group released "Celsius 41.11."

And after it became clear that Bossie's longtime enemy Hillary Rodham Clinton would run for president, Citizens United released another flick: "Hillary: The Movie." Featuring a who's-who cast of right-wing commentators, the 2008 film takes viewers on a savaging journey through Clinton's scandals. The sole compliment about the then-senator comes from conservative firebrand Ann Coulter: "Looks good in a pantsuit."

But "Hillary: The Movie" never became a blockbuster. The Federal Election Commission restricted Citizens United's ability to advertise the film during the 2008 primary season, a decision that Bossie and other conservative activists saw as a threat to their freedom of speech.

"The marketplace for my movie was completely and totally shut down by the Federal Election Commission," Bossie said in an interview Thursday.

So he sued -- and thus was born Citizens United v. Federal Election Commission, the legal drama that resulted in Thursday's dramatic Supreme Court decision to overturn restrictions on corporate spending on behalf of or in opposition to political candidates.

Critics said Citizens United created the withering movie knowing that it would fall under the tangle of broadcast and advertising restrictions in the McCain-Feingold campaign finance law.

"The movie was created with the idea of establishing a vehicle to chip away at the decision," said Nick Nyhart, president of Public Campaign, a group that opposed Thursday's decision. "It was part of a very clear strategy to undo McCain-Feingold."

When the Citizens United case went to a lower court in 2008, the court sided with the FEC, saying that the film was effectively a 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."

Bossie and his legal team fast-tracked the case, appealing to the Supreme Court. They easily recruited one of the right's most experienced lawyers, Theodore B. Olson. He worked with the group's counsel, Michael Boos, and Floyd Abrams, a veteran First Amendment lawyer who worked on the Pentagon Papers case.

Olson, a former solicitor general, had argued before the Supreme Court countless times, including representing George W. Bush during the 2000 Florida recount. But this case was special.

"Hillary: The Movie" was dedicated to his wife, Barbara Olson, a conservative commentator who was a passenger on American Airlines Flight 77 when it crashed into the Pentagon on Sept. 11, 2001. She was a longtime Clinton critic, working with Bossie in the trenches on Capitol Hill through the 1990s investigations, and wrote the book "Hell to Pay: The Unfolding Story of Hillary Rodham Clinton."

"Very, very few people in the world knew as much about Hillary and Bill Clinton as Barbara Olson did," Bossie said, adding that Ted Olson "had an emotional connection" to fighting this case.

Bossie said Ted Olson was "singularly responsible for our winning this case." Olson transformed the case from a narrow one about McCain-Feingold to an assault on the law's constitutionality, helping crystallize the issue for the justices.

When the Supreme Court first heard the case in March, Deputy Solicitor General Malcolm L. Stewart, representing the FEC, was pulled into a discussion of an issue that took him down a slippery slope: If the movie were a book, would the government ban publishing the book if it mentioned a candidate for office within the election time frame?

Stewart said that it could.

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

Then came questions about electronic devices such as the Kindle.

"If it has one name, one use of the candidate's name, it would be covered, correct?" Chief Justice John G. Roberts Jr. 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.

Bossie said this was the argument that turned a majority of the bench against the FEC and in favor of Citizens United.

"That sent a chill down the Supreme Court," Bossie said. The argument became a "point of demarcation."

Citizens United spent about $1.25 million in legal fees on the case -- so much, Bossie said, that it "makes you cry."

But, he said, it was worth every dollar.

"We have been trying to defend our First Amendment rights for many, many years," Bossie said. "We brought the case hoping that this would happen. . . . to defeat McCain-Feingold."

© 2010 The Washington Post Company