Justices Agree to Hear Case on Anti-Clinton Film

November 14, 2008

By Adam Liptak

WASHINGTON - The Supreme Court on Friday added to its docket two cases arising from hard-fought elections, including one concerning whether a film critical of Senator Hillary Rodham Clinton and advertisements for it are subject to regulation under campaign finance law.

The other case will determine whether a West Virginia Supreme Court justice must disqualify himself from a case involving a mining executive who spent more than $3 million to support the justice's candidacy.

The campaign finance case, Citizens United v. Federal Election Commission, No. 08-205, arises from "Hillary: The Movie," a film by a conservative advocacy group released early this year, when Mrs. Clinton was a candidate for the Democratic presidential nomination. The question for the court is whether the McCain-Feingold campaign finance law of 2002 applies to the broadcast of a feature-length film and to television advertisements for it.

In January, a three-judge panel of the Federal District Court here said the film was an "electioneering communication" with only one point: "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."

The panel added that advertisements for the film must include spoken and written disclosures, among them that "Citizens United is responsible for the content of this advertising."

Citizens United said those requirements were unconstitutionally burdensome. The spoken disclosure, the group told the Supreme Court, "takes about four seconds to narrate, making 10-second ads virtually impossible and 30-second ads difficult to do."

The McCain-Feingold law prohibits the use of corporate treasury money, including that of nonprofit issue advocacy groups, to pay for much electioneering communication in a window of 60 days before a general election or 30 days before a primary election. James Bopp Jr., a lawyer for Citizens United, said in a statement issued Friday that "the notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings."

Richard L. Hasen, an election law specialist at Loyola Law School Los Angeles, said the justices' decision to hear the case might have been influenced by special procedures created by the McCain-Feingold law allowing appeals directly from the district court to the Supreme Court in some election-law cases. In addition, Professor Hasen said, there has been interest by the court's two newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., in campaign finance cases.

The West Virginia case concerns a question the Supreme Court has so far been reluctant to address: Do the due process protections of the Constitution require judges to disqualify themselves when people appearing before them have spent considerable sums to support their candidacies?

The plaintiffs in the case, Caperton v. A. T. Massey Coal Company, No. 08-22, say they were driven out of business by fraud committed by a major coal mining company, Massey Energy. The company's chief executive, Don L. Blankenship, spent more than $3 million to help elect Brent D. Benjamin to the State Supreme Court and defeat his opponent, an incumbent justice.

Justice Benjamin then twice joined 3-to-2 majorities to throw out a $50 million verdict against Massey.

In urging the United States Supreme Court not to hear the case, lawyers for Massey said due process required only the absence of an actual judicial conflict of interest, as when a judge has a stake in the outcome of a case. The court, the company's brief said, "has never adopted a 'looks bad' due process test."

A lawyer for the plaintiffs, Theodore B. Olson, said that was the wrong analysis.

"The issue raised by massive campaign contributions to judges from litigants and their attorneys," Mr. Olson said, "go to the very heart of what it means to be given a fair trial."

The Supreme Court also agreed to hear three criminal cases. They concern whether even the accidental discharge of a gun during a drug deal automatically adds 10 years to a sentence under federal law; whether the use of a cellphone to buy drugs can convert a misdemeanor drug charge into the felony of facilitating the distribution of drugs; and the scope of the double jeopardy clause.