The Supreme Court’s weakened support for the McCain-Feingold campaign law seemed to slip further Tuesday as the justices debated whether an anti-Hillary Clinton movie released during the 2008 presidential campaign should be regulated as a campaign advertisement or protected under the First Amendment.

Justices seemed divided about the complex issue during oral argument in the case Citizens United v. Federal Election Commission, brought by a conservative group that produced “Hillary: The Movie” while she was a candidate for president.

The movie was shown in theaters and on DVD, but when it sought to advertise the movie on TV and distribute it through video-on-demand, a three-judge district court panel in D.C. nixed the plans, ruling  that the film was an “electioneering communication” subject to the financing and disclosure regulations of McCain-Feingold. Funding for such broadcast communications cannot come directly from a corporation or union treasury, under the 2002 statute.

The argument, and the justices’ reaction to it, yielded few signals about how the case would come out—until, that is, the middle of Deputy Solicitor General Malcolm Stewart’s defense of the law as it applied to the Hillary Clinton movie.

Justice Samuel Alito Jr, whose vote, along with that of Chief Justice John Roberts, could decide the outcome, asked Stewart whether the restrictions of McCain-Feingold could constitutionally apply to a book version of the movie, as well as other forms of distribution.

When Stewart said yes, Alito said, “That’s pretty incredible. You think that if . . . a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

Not banned, Stewart said, but Congress could prohibit its publication using corporate treasury funds. “Well, most publishers are corporations,” Alito replied.

Justice Anthony Kennedy asked if an advocacy organization could publish such a book and distribute it through Amazon’s Kindle device. Stewart said that too could be subject to regulation.

Roberts followed with another hypothetical that resulted in the same answer from Stewart that the government could halt publication of a book using corporate treasury funds under some circumstances.

That specter did not appear to sit well with the justices, and Justice Stephen Breyer, a firm supporter of campaign finance laws, tried to change the subject with a new line of questioning.

But Roberts returned to it, telling Stewart, “If we accept your constitutional argument, we’re establishing a precedent that you yourself say would extend to banning the book” if paid for by a corporation.

The damage seemed to have been done, and the Roberts Court appeared for the moment to be ready to rule again to limit some aspect of McCain-Feingold on First Amendment grounds.

After the argument, Institute for Justice lawyer Steve Simpson, whose group filed a brief against the law, said, “When the government is taking the position that it can ban books because they are financed by corporations, it is time to scrap the campaign finance laws. This is America. We don’t ban books here.”

Nonetheless, some justices—notably Breyer, John Paul Stevens, and Ruth Bader Ginsburg—still seemed to hold to the notion that the Clinton movie at issue was equivalent to the kind of 30-second attack ad Congress was trying to prohibit when funded by corporate or union money. If an ad is “the functional equivalent of express advocacy” for or against a candidate, the Court has ruled in the past that it can be restricted.

Before Stewart spoke, Theodore Olson of Gibson, Dunn & Crutcher, who represented Citizens United, tried to make the case that restricting his client’s film would threaten freedom of speech and press.

“This documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee,” Olson said.

But Ginsburg did not seem ready to go that far, if the “documentary” is still aimed primarily at swaying votes—and therefore subject to the law. Noting the film’s unrelenting criticism of Clinton as a presidential candidate, Ginsburg said, “If that isn’t an appeal to voters, I don’t know what is.”



Tony Mauro can be contacted at tony.mauro@incisivemedia.com.