High court may trim McCain-Feingold

Question whether measure applies to 'Hillary' movie

March 25, 2009

By Robert Barnes

WASHINGTON - 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 witheringly critical 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 Senator Hillary Rodham Clinton as she pursued the Democratic presidential nomination.

The three-judge panel applied a test written in 2007 by Chief Justice John Roberts 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 lawyer Theodore Olson's assertion that the film was meant to inform, educate, and even entertain audiences.

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

Justice David 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 former president George W. Bush's solicitor general argued for the law when it was upheld by the court 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 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.

Justices Anthony Kennedy, 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.