Documentary on Clinton Tests Campaign Finance Law

March 5, 2009

By Adam Liptak

WASHINGTON - It has been about a decade since the Supreme Court considered a case arising from the tangle of lawsuits and investigations that once threatened to engulf the administration of President Bill Clinton.

The nation may have moved on, but the court has not. Next month, as Hillary Rodham Clinton settles in as secretary of state, the court will have a look at "Hillary: The Movie," a scathingly hostile look at Mrs. Clinton in the tradition of Michael Moore's "Fahrenheit 9/11."

The case, to be argued March 24, will require the court to confront a new genre with old roots: the slashing political documentary.

"Hillary: The Movie," released last year in the thick of the Democratic presidential primary season, is a fine example of the genre. There are ripe voice-overs, shadowy re-enactments and spooky mood music. There is, inevitably, Ann Coulter. Asked to say something nice about Mrs. Clinton, Ms. Coulter responds, "Looks good in a pantsuit."

But the film also contains commentary from journalists more in the establishment like Michael Barone of U.S. News & World Report and Jeff Gerth, formerly of The New York Times.

And it presents some straightforward reporting, including interviews with people from the Clinton era in the White House, like Billy R. Dale, who was fired as director of the White House travel office; Gary Aldrich, who wrote a book about his experiences as an F.B.I. agent assigned to the White House; and Kathleen Willey, a former White House volunteer who accused Mr. Clinton of making an unwanted sexual advance.

There are two basic questions before the court: Is the film the sort of "electioneering communication" that the McCain-Feingold campaign finance law of 2002 says may not be broadcast in certain time windows before elections? And if it is, can the law itself then be squared with the First Amendment?

The documentary was produced by Citizens United, a conservative advocacy group that is a nonprofit corporation. Its president, David Bossie, is a former Congressional aide and a longtime foe of the Clintons.

Last year, Citizens United lost a suit against the Federal Election Commission and scuttled plans to show the film on a cable video-on-demand service and to broadcast television advertisements for it. But the film was shown in theaters in six cities, and it remains available on DVD and the Internet.

Theodore B. Olson, who was the United States solicitor general in the administration of George W. Bush after playing a supporting role in promoting the scandals that swirled around the Clinton White House, is defending the film in the Supreme Court. In a brief, Mr. Olson called it "a critical biographical assessment" that provides "historical information about the candidate and, perhaps, some measure of entertainment as well."

The Obama Justice Department sees the documentary differently. "Every element of the film, including the narration, the visual images and audio track, and the selection of clips," its brief said, "advances the clear message that Senator Clinton lacked both the integrity and qualifications to be president of the United States."

Reviews of the documentary have been few and largely unflattering. Megan Carpentier, writing in Radar, said "the movie scrolls through more than a decade of press clippings and a treasure trove of unflattering pictures in its one-sided romp" and advised potential viewers to see it "while inebriated in the manner of your choosing, and only if you don't pay $10 for the privilege."

The McCain-Feingold law bans the broadcast, cable or satellite transmission of "electioneering communications" paid for by corporations 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.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications "susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate." It also requires spoken and written disclaimers in the film and advertisements for it, along with the disclosure of contributors' names.

The net effect, Mr. Bossie said in an interview, is censorship.

"I can put it in as many theaters as I want across the country," he said of the documentary. "I just can't let anyone know about it."

Last year, a three-judge panel of the Federal District Court here said the film was prohibited electioneering communication with one purpose: "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."

But that is not the only possible interpretation of the film.

For instance, in a brief in the Supreme Court defending the film, the Reporters Committee for Freedom of the Press said the film "does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history."

The McCain-Feingold law does contain an exception for broadcast news reports, commentaries and editorials. But that, the reporters committee's brief said, is not good enough.

"Who is the F.E.C. to decide what is news and what kind of format news is properly presented in?" Gregg P. Leslie, a lawyer with the committee, asked in an interview.

The government's brief said the fact that Citizens United had proposed to pay a cable company to make its film available demonstrated that the film was an infomercial rather than authentic news media commentary.

Mr. Bossie said the documentary was not meant to take a position in a particular election. Had he been forced to choose between Mrs. Clinton and Barack Obama during the primaries, he added, he would have voted for Mrs. Clinton.