Justices Seem Skeptical of Scope of Campaign Law

March 25, 2009

By Adam Liptak

WASHINGTON - A quirky case about a slashing documentary attacking Hillary Rodham Clinton would not seem to be the most obvious vehicle for a fundamental re-examination of the interplay between the First Amendment and campaign finance laws.

But by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court's 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics.

Several of the court's more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, "Hillary: The Movie," and a 30-second television advertisement.

Justice Anthony M. Kennedy said the government's uncompromising position could have dire consequences for the McCain-Feingold law.

"If we think that the application of this to a 90-minute film is unconstitutional," Justice Kennedy said, "then the whole statute should fall under your view because there's no distinction between the two?"

Mr. Stewart said the two kinds of communications should rise or fall together, so long as each satisfied a test set out by the court in a decision in 2007. That decision said restrictions in the McCain-Feingold law applied only to communications "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

"Hillary: The Movie," a documentary with elements of polemic and advocacy journalism, was produced by Citizens United, a conservative nonprofit corporation. It was released during the Democratic presidential primaries last year, and a lower court said it could not be broadcast within 30 days of those elections.

Justice David H. Souter quoted snippets of the film's characterization of Mrs. Clinton, who was running for president and is now secretary of state.

"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," Justice Souter recited.

"I mean," he concluded, "this sounds to me like campaign advocacy."

Justice Stephen G. Breyer was more circumspect. "It is not a musical comedy," he said of the film.

Other justices pressed Mr. Stewart for a limiting principle to his argument.

Justice Samuel A. Alito Jr. asked, for instance, whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation's general treasury money, as opposed to its political action committee.

"That's pretty incredible," Justice Alito said.

Justice Alito replaced Justice Sandra Day O'Connor, an author of the 5-to-4 decision upholding the McCain-Feingold law in 2003. Justice Alito is more skeptical of campaign finance regulation than Justice O'Connor was.

Chief Justice John G. Roberts Jr. asked whether it would make a difference if a 500-page book had a single sentence in it that said "vote for X." Then he asked about "a sign held up in Lafayette Park saying vote for so and so."

If corporate money were used to pay for the book or the sign, Mr. Stewart said, Congress would have the power to ban them before elections.

Justice Breyer tried to steer the conversation away from speech and toward money.

"You can't prohibit all those things," he said, referring to books, videos and the like. "What you do is put limitations on the payment for them."

The McCain-Feingold law of 2002 applies only to broadcast, cable or satellite transmission of "electioneering communications" paid for by corporations or labor unions in the 30 days before a presidential primary and in the 60 days before the general election. That leaves out old technologies, like newspapers, and new ones, like YouTube; and it includes an exception for broadcast news reports, commentaries and editorials.

Theodore B. Olson, a lawyer for Citizens United, said the law was inconsistent in its treatment of corporations. Television networks owned by General Electric and Disney are not subject to the McCain-Feingold law, Mr. Olson said, but General Motors is. The Reporters Committee for Freedom of the Press made a similar point in a brief supporting Citizens United.

If the court were inclined to rule narrowly for Mr. Olson's side in the case, Citizens United v. Federal Election Commission, No. 08-205, it could find that the documentary is not the sort of communication covered by McCain-Feingold law. Or it could say that that the proposed distribution of the film on a cable video-on-demand service would not be covered by the law.

But Mr. Stewart's answers to the justice's hypothetical questions may have pushed the court toward a broader ruling.

"If we accept your constitutional argument," Chief Justice Roberts told Mr. Stewart, "we're establishing a precedent that you yourself say would extend to banning the book."

Justice Antonin Scalia said he was "a little disoriented."

"We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?" Justice Scalia asked. He was referring, of course, to the First Amendment.