March 23, 2009
By Lee Ross
Case: Citizens United v. Federal Elections Commission
Date: Tuesday, March 24, 2009
Issue: Whether the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 (BCRA) aka McCain-Feingold, covers a documentary film about then presidential candidate Hillary Clinton. Also, whether BCRA's disclaimer, disclosure, and reporting requirements can be constitutionally applied to advertisements for that film.
Background: Citizens United produces politically oriented documentary films. In 2007, the conservative non-profit organization started work on a 90 minute biography of then presidential candidate Hillary Clinton. It was ready for air in January, 2008; the same month as the Iowa Caucuses and the New Hampshire Primary. Citizens United sought to distribute the film through a cable provider's on-demand system and to promote the film through advertisements. But under the federal campaign finance law, Citizens United was prohibited from completing its cable deal because the film was considered "prohibited electioneering communication." Its ads were also shelved because of a disclosure requirement forcing Citizens United to reveal the names of its donors. Something the filmmakers didn't want to do.
A three judge panel in Washington D.C. ruled against Citizens United's attempts to stop the Federal Election Commission from cracking down on its film. The judges determined that the film, contrary to Citizens United's argument that it was strictly a biography, had "no other interpretation" other than as an advocacy message to voters that Clinton should not be elected president. It also ruled against Citizens United's claims that forcing them to reveal their donor list in order to run advertisements was a violation of the First Amendment.
This is the third significant Supreme Court challenge to the federal campaign finance law. Earlier this decade, the Court ruled that the law's prohibition on corporate electioneering communications, as well as its reporting, disclosure, and disclaimer requirements were not facially invalid. The Court later clarified its position to say that only messages of "express advocacy" or its functional equivalent could be prohibited.
In its appeal to the Supreme Court, Citizens United says the lower court erroneously applied the campaign finance law to its film and organization. It is also a law they argue "imposes sweeping restrictions on core political speech." The Obama Administration is defending the law and counters that the film is "unmistakenly an appeal to viewers to vote against" Clinton. The government argues the Court has "repeatedly sustained" federal campaign finance laws in the past and should do so again in this case. The lawmakers who sponsored the original legislation-Senators John McCain (R-Ariz.), Russ Feingold (D-Wis.) and former representatives Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.)-submitted a joint in a friend of the Court brief defending the law.