Anti-Hillary Clinton movie to get Supreme Court review

November 15, 2008

By David G. Savage

Reporting from Washington -- The Supreme Court voted Friday to hear an election- related case that will decide whether a politically charged film -- in this case "Hillary: The Movie" -- can be regulated as a campaign ad.

The justices said they would hear an appeal from a conservative group that had sought to advertise its anti-Clinton documentary as the New York senator competed for the Democratic presidential nomination.

The Federal Election Commission said the group could not broadcast the film on television or air ads close to the election without running afoul of campaign funding laws.

The McCain-Feingold Act forbids corporate-funded broadcast ads that attack a candidate within a month of a primary or general election. The law also requires political groups to disclose who paid for the ads.

But lawyers for Citizens United, the conservative group, say limits on "core political speech rights" are unconstitutional.

The court also said Friday that it would hear a West Virginia case that has highlighted the role of big money in state high court justice races.

In 2004, the A. T. Massey Coal Co. faced a $50-million verdict in a contract dispute with another coal firm. That year, its president and chief executive gave $3 million to candidate Brent Benjamin's campaign for a seat on the state Supreme Court. Benjamin won the seat; 60% of his funding came from the Massey executive.

Shortly afterward, the West Virginia Supreme Court agreed to hear Massey's appeal in the contract dispute. Despite pleas that he withdraw, Justice Benjamin cast the deciding vote in a 3-2 ruling that overturned the verdict.

Washington lawyer Ted Olson appealed the case on behalf of Harman Mining Corp., the other coal company.

He said Benjamin's refusal to step aside created "an unacceptable appearance of bias." He urged the justices to rule that it violated the Constitution's guarantee of due process of law to permit a judge to accept a huge contribution from a donor and then rule on his case.

Caperton vs. A. T. Massey Coal Co. will be heard in February.

Thirty-nine states elect at least some of their judges. The amount of money spent on state high court races doubled between 1999 and 2006, according to the Brennan Center for Justice at New York University. James Sample, a Brennan Center lawyer, called the West Virginia case "an egregious example of a national trend: brazen attempts to purchase influence in pending cases."

Both appeals were before the U.S. Supreme Court for weeks, but justices waited until after the Nov. 4 election to vote to take them up.

In recent years, the court has been closely split on cases involving money, politics and the 1st Amendment. Since the arrival of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., the court has shifted toward the view that the campaign laws violate the free-speech rights of political groups.

"The 1st Amendment requires us to err on the side of protecting political speech," Roberts said last year in a case involving a Wisconsin antiabortion group that had broadcast ads critical of Sen. Russell D. Feingold (D-Wis.)

Indiana attorney James Bopp Jr. represented the Wisconsin antiabortion group. This year, he represented Citizens United, the group that made "Hillary: The Movie."

The 90-minute film was made by David N. Bossie, a former congressional staffer who was a relentless investigator of the Clintons during the 1990s. The movie includes interviews with Ann Coulter, Newt Gingrich and Dick Morris.

The group planned to show the film in selected theaters and distribute it on DVD. That was not affected by the campaign funding laws.

But the group also planned to run radio and TV ads promoting the film and hoped to broadcast the documentary on television.

Those issues were subject to the McCain-Feingold Act because they were broadcasts that attacked a candidate just prior to the primary election contests.

In January, a three-judge panel of the U.S. district court in Washington agreed with the FEC that "Hillary: The Movie" was akin to a campaign ad and could not be broadcast on TV.

It told "the electorate that Sen. Clinton is unfit for office . . . and that viewers should vote against her," the court said.

The court did say that the group could run TV ads that mentioned the film -- but only with a disclaimer and disclosure of its donors.

Bopp renewed his appeal in the Supreme Court, and insisted the rules requiring the disclosure of donors should be thrown out.

He said Friday he was pleased the justices voted to hear Citizens United vs. FEC. The case is expected to be heard in February.

Bopp said in a statement: "The notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings."

Savage is a Times staff writer.