The Supreme Court hears arguments on Tuesday in a case that gives it a chance to stop political groups and corporations from gouging a major hole in federal campaign finance law. The case revolves around Hillary: The Movie, an anti-Hillary Rodham Clinton film made before the 2008 election. A lower federal court ruled that the film falls under federal law restricting the airing of attack ads. The Supreme Court should affirm that ruling.
Hillary: The Movie was produced by Citizens United, a conservative nonprofit corporation. The film is full of express arguments that Mrs. Clinton would not be a suitable president or commander in chief.
Citizens United announced plans to distribute the movie during the Democratic primary season in several ways, including through a cable video-on-demand service. It also planned commercials for the movies release.
The McCain-Feingold law bars corporations from using their own treasuries for electioneering communications within 30 days of a primary or 60 days of a general election. The ban applies to express advocacy or its functional equivalent for or against a candidate.
Citizens United sued, claiming that these restrictions infringed on its First Amendment rights. After closely examining Hillary: The Movie, a three-judge panel decided it was essentially a long commercial against Mrs. Clinton. Given its corporate financing, the McCain-Feingold law applied to the film.
Since the promotional ads did not expressly advocate against Mrs. Clinton, Citizens United was allowed to air them, but because they were electioneering communication, it was required to file a list of major contributors with the Federal Elections Commission.
Citizens United is making a wide array of claims. Most sweeping, and most dangerous, is its request to the court to overrule Austin v. Michigan State Chamber of Commerce, a landmark ruling that stopped corporations from using money from their general treasuries to pay for express advocacy. The court should reject all of Citizens Uniteds claims.
If Citizens United prevails, it would create an enormous loophole in the law and allow corporate money to flood into partisan politics in ways it has not in many decades. It also would seriously erode the disclosure rules for campaign contributions.