The Supreme Court tomorrow will tackle a question that pits First Amendment freedom of speech rights against congressional efforts to limit the influence of special interests that have millions of dollars to spend on speech. Capital Eye will cover Tuesday’s oral argument, but for now, here’s a synopsis of the case:

The Case: Citizens United v. Federal Election Commission

At Issue: Whether a feature-length movie critical of Hillary Clinton as a presidential candidate, and ads promoting the movie, should have been considered “electioneering communications” and, therefore, subject to campaign finance laws. Companies, unions and nonprofit issue advocacy organizations are prohibited from spending money directly from their treasuries on advertising supporting or opposing a candidate 30 days before a primary and 60 days before a general election. The Supreme Court is now charged with the task of determining where full-length movies fit into the campaign finance scheme during an election.

History: A three-judge panel of the Federal District Court already sided with the Federal Election Commission (FEC) and determined that “Hillary: The Movie” and its advertisements by conservative advocacy group Citizens United should have included certain disclosures and was rightfully prohibited in the 30 days before the presidential primaries. These rules come from the Bipartisan Campaign Reform Act of 2002 (BCRA), which prohibits the use of corporate funds to finance “public communications” that advocate for or against a candidate for federal office, including ads via broadcast, cable and satellite. In 2003, the Supreme Court upheld this provision of BCRA in McConnell v. FEC, but two judges new to the court since then, Chief Justice John Roberts and Justice Samuel Alito, could shake things up.



Citizens United: The nonprofit corporation argues that attaching required spoken and written disclosures on ads for the movie would have been unconstitutionally burdensome. The group also says it should have been allowed to spend $1.2 million to make the movie available via cable video-on-demand services in the days before the primaries, saying that “video-on-demand” is different from the prohibited means of broadcast in the law. According to the group’s lawyer, Theodore Olson, the movie was a journalistic endeavor and a long-form documentary film and, therefore, not a political communication. It has even gained support from a group of editors and reporters, the Reporters Committee for Freedom of the Press. Olson will argue that BCRA is unconstitutional as applied to the film and that the use of corporate funds for political speech should be permitted. Citizens United’s PAC raised $3.7 million in the 2008 election cycle and spent $3.1 million of that.

The FEC: The FEC, joined by BCRA co-sponsors Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and former Reps. Chris Shays (R-Conn.) and Marty Meehan (D-Mass.), want the Supreme Court to uphold the Federal District Court’s ruling, saying that the 90-minute film by the anti-Clinton group was clearly a political appeal meant to hurt Clinton’s chance of winning the primaries. Films–and their advertisements–that set out to support or defeat a candidate should be subject to BCRA limitations and disclosure rules, the FEC argues. The government brief also states that a video-on-demand show is nothing more than a political “infomercial,” which would be banned by BCRA.



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