The Supreme Court will hear oral argument at 10 a.m.  Tuesday on Citizens United v. Federal Election Commission (08-205).  Theodore B . Olson of Washington will argue for Citizens United.  Deputy Solicitor General Malcolm L. Stewart will represent the FEC.

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Movies, somewhat akin to documentaries but with a distinct and sometimes sharp political edge, are becoming a prominent mode of campaigning in national election cycles.  The scope of federal regulation of their timing and content is before the Supreme Court in its latest major campaign finance case — Citizens United v. Federal Election Commission.  The case, however, has broader implications, potentially leading to a major alteration of constitutional law in this field.

Background

In modern national election campaigns, for President and for members of Congress, increasingly sophisticated modes of communication seek to capture the voting public’s attention, and to shape election outcomes.  In various media, including films, the “attack ad” is one of the most ubiquitous kinds of message that campaign organizations or private advocacy groups put out.  Congress made a major effort to put some limits on such so-called “electioneering communications” — including attack ads — when, in 2002, it passed the Bipartisan Campaign Reform Act.  Since then, the Supreme Court has spent a good deal of time and energy sorting out constitutional issues surrounding one of the Act’s most controversial sections — Section 203, the “electioneering communications” section.  The Court in the 2003 decision in McConnell v. FEC upheld that provision as written — that is, against “facial” constitutional challenges targeting its very wording.  More recently, the Court has returned with some frequency to resolving  challenges to Section 203 as it has been applied in the context of specific political messages.  It returns to that exploration in Citizens United v. Federal Election Commission.

Section 203 — a modern echo of federal regulation that goes back to 1907 — is aimed at corporations (including non-profit advocacy organizations using the corporate form) and at labor unions.  It does not restrict corporate or union expenditures used to finance campaign communications, when those are paid for out of a PAC — a political action committee.  But, if a corporation or union wishes to spend its own treasury funds, Section 203 bars the use of those funds to finance communications that refer to a clearly identified candidate for the presidency or for Congress, on radio, television, cable TV, or satellite broadcast, within 30 days before a primary election or nominating convention, or within 60 dats before a general election.

In 2007, the Supreme Court, in FEC v. Wisconsin Right to Life, ruled that Section 203 only applies to communications that either urge a direct vote for or against an identified candidate, or are the “functional equivalent” of such encouragement — that is, if the communication “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” even if it does not explicitly say that is what it is urging.

Along with Section 203, Congress in the 2002 Act added two other provisions that seek to bring out into the open the sources of financing for such communications.   A disclosure requirement (Section 201) provides that any corporation or union that spends more than $10,000 in a year to produce or air such communications must file a report with the FEC revealing the names and addresses of anyone who contributed $1,000 or more for the communication’s preparation or distribution.  A disclaimer requirement (Section 311) provides that, if the communication is not authorized by a candidate or a political committee, the broadcast must say who is responsible for the content, plus the name and address of the group that has prepared the communication.

The disclosure and disclaimer provisions, like Section 203 itself, were upheld by the Court in 2003 against facial challenges.

Citizens United, a Virginia-based conservative advocacy group (organized as a non-profit corporation), has been centrally involved in tests of the constitutionality of the federal controls on “electioneering communications.”  Since December 2007, it has been engaged in a court battle with the FEC over Sections 203, 201 and 311.  At the center of the fight is a Citizens United film about Sen. Hillary Rodham Clinton, a Democratic presidential candidate, titled “Hillary: The Movie.”

The feature-length movie has been described by Citizens United in court papers this way: it “includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances.  It is about 90 minutes in length.  It does not expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”

The film actually has been shown in movie theaters, and has circulated at retail in a DVD format.  Citizens United prepared three TV ads to promote the movie.  The group planned to broadcast one of the ads on Fox News cable network, and on other TV networks.  It planned to air two of the ads on other networks, but not on Fox.  It planned to do so in what it called a “rollout advertising blitz” timed to coincide with public release of the movie in January of last year.  It also had a plan to market the movie via video-on-demand on cable TV.

The ads, however, appeared to come under the federal law’s definition as “electioneering communications,” because the group was planning to air them while the presidential primary election season was unfolding.  So Citizens United went to court, seeking to bar the FEC from banning the broadcast of the movie and of the ads, and from enforcing the disclosure and disclaimer rules.  Among its other arguments, it contended that the movie was not an electioneering communication within the meaning of Section 203 — it did not advocate a vote for or against Sen. Clinton — and that, if it was, the Section was unconstitutional because it interfered with political speech.  A U.S. District Court refused to issue a preliminary order protecting the movie and the ads from regulation by FEC.   Citizens United tried to take the issue to the Supreme Court, but the Justices summarily dismissed its appeal for lack of jurisdiction on March 24 of last year (docket 07-953). (Justice Stephen G. Breyer noted that he would have upheld the District Court decision.)

The case then returned to District Court, leading to a final ruling last July on the merits, finding the movie to be covered by Section 203.  That court said that the movie could not be interpreted as anything other than a message that Sen. Clinton was unfit for office, that the country would be a dangerous place if she were elected, and that viewers of the movie should vote against her.

While the promotional ads could not be barred, the District Court found, Citizens United would have to obey the disclosure and disclaimer requirements for those ads.  (Because both of the District Court rulings were by three-judge courts, appeals from those decisions went directly to the Supreme Court.)  Citizens United then returned to the Supreme Court.

No doubt, interest in “Hillary: The Movie” has waned, at least in its political statement, since the presidential election is over and Sen. Clinton did not win.  But Citizens United’s case is not a dead letter.  The FEC, which opposed Supreme Court review of the dispute, conceded that the Court had jurisdiction because Citizens United planned to do such electioneering in the future, as it did in 2008 not only against Sen. Clinton but also in a separate, critical move about then-Sen. Barack Obama.

Jurisdictional Statement

Citizens United’s appeal, filed last Aug. 14, had as its leading point a plea to the Supreme Court to “determine the proper application” of its 2007 decision in the Wisconsin Right to Life case, narrowing the scope of Section 203’s ban on “electioneering communications.” The FEC, it complained, is not restricting its regulation of such communications to those that urge a vote for or against a named candidate, as the 2007 decision required, but is claiming authority to regulate “activity that attempts to sway public opinion on issues.”

The appeal also argued that the FEC is not restricting enforcement of disclosure and disclaimer requirements to communications that meet Section 203’s definition, but is asserting power to regulate broadcast ads even though they are protected from being banned outright. The Court, it argued, should apply its 2007 decision to protect “grassroots lobbying ads” from the additional burdens of the disclosure and disclaimer provisions.

Moreover, the appeal seeks an explicit exemption from Section 203 for movies which do not urge a vote for or against a federal candidate.  “This is a movie,” its appeal said, “not one of the broadcast ‘ads’ that gave rise” to the enactment of Section 203.  “While feature-length movies, and ads promoting them, have traditionally enjoyed the full First-Amendment protection traditionally afforded to books and their promotions, that is not the case here,” it protested.

Finally, it suggested that the FEC was making, as to its authority to regulate the disclosure of ads’ financing, the same argument it had made earlier about Section 203: that is, that the Supreme Court’s McConnell decision in 2003 had resolved not only facial challenges, but also had upheld the disclosure and disclaimer requirements against as-applied challenges.

Thus, in summary, the questions its appeal raised cover these points: (1) did McConnell resolve the constitutionality of as-applied challenges to the disclosure and disclaimer rules; (2) do those rules impose an unconstitutional burden when applied to “political speech” protected by the Wisconsin Right to Life decision; (3) did that decision require, for regulation, a definite call for a vote for or against a candidate; and (4) whether a feature-length documentary can be treated as if it were an “ad” of the kind at issue in the McConnell decision.

The Justice Department, joined by the FEC, urged the Supreme Court either to dismiss Citizens United’s appeal, arguing that the District Court was right in ruling as it did. “That decision,” it argued, “rests on a straightforward application of settled legal principles.”  Thus, it said, the appeal should be dismissed “for lack of a substantial federal question.”  As an alternative, it proposed that the Court simply affirm summarily the District Court’s ruling.

The government response said FEC was not claiming that the McConnell decision had barred as-applied challenges to the disclosure and disclaimer requirements.  The language of the 2003 opinion itself suggests no such conclusion, the brief said.  The government also said that disclosure and disclaimer requirements have long been analyzed under a more relaxed First Amendment scrutiny, and the government interest in transparency during elections justifies the requirements in this context, too.

Further, the U.S. brief rejected the argument that an inability to ban the ads at issue also meant that the disclosure and disclaimer rules could not be enforced.  “Compelled disclosure of financing information [regarding elections] may be permissible even when the disbursements in question have nothing to do with any candidate election,” the brief asserted.

The movie, the government contended, clearly is a form of “express advocacy” that Sen. Clinton not be elected president.  It is a sustained attack on her “character and fitness,” and does not address policy or legislative issues except in a “few short portions,” the brief argued.   The law, it said, simply does not exclude feature-length films, and thus is not restricted to short spots on the air.

The Court accepted jurisdiction of the case on Nov. 14, and later set it for argument on March 24.

Merits Briefs

Citizens United’s case has had a major shift in emphasis since the Court granted review.  It now amounts to a sweeping constitutional challenge to any application of the 2003 Act to “feature-length movies distributed through Video on Demand.”  Congress’ power to order the regulation of “electioneering communictions,” the merits brief contended, should be limited to “short broadcast advertisements, which generally target unwilling recipients.”  Those who see a film like “Hillary: The Movie” are a “self-selected audience willing to invest 90 minutes of their time to watch a movie.”  Thus, such films are far less likely, the brief said, “to reach and persuade undecided voters and thereby influence the outcome of an election.”

Moreover, the brief goes further, urging the Court to strike down a 1990 decision — Austin v. Michigan State Chamber of Commerce — that upheld a compelling interest for the government in regulating expression by corporations who may be very wealthy.  That decision, it contended, “is flatly at odds with the well-established principle that First Amendment protection does not depend upon the identity of the speaker.”

But, it went on, even if the government might be justified in banning a movie distributed on cable TV for those who choose to see it, that should not include a film “funded overwhelmingly with individual donations.”   And, it added, the movie about Sen. Clinton, while highly critical, simply cannot be banned on any theory that it would involve “political corruption.”

A similarly broad constitutional attack is aimed, by Citizens United’s brief, at the disclosure and disclaimer provisions of the 2002 Act.  Since the ads in question are not “electioneering communications,” the government lacks a compelling interest in forcing revelations about their financing, it contended.  Those requirements fall under “strict scrutiny,” but also would fall under a lesser standard, the brief asserted.

(Citizens United, it should be noted, turned to seasoned Court advocate Theodore B. Olson, former U.S. Solicitor General and a principal legal architect of President George W. Bush’s legal fight in winning the 2000 election, to do its merits brief, and for the oral argument.  James Bopp, Jr., the Terre Haute, Ind., lawyer and conservative advocate who had been handling Citizens United’s case, filed a merits brief on behalf of an amicus, the Committee for Truth in Politics, Inc.)

The FEC and the Justice Department, in the government’s merits brief, insisted that the Supreme Court’s McConnell decision in 2003 controls the outcome of this new test.  Using corporate dollars to pay for an “unmistakable” appeal for voters to reject Sen. Clinton, the brief asserted, is exactly what the McConnell ruling allowed the government to ban.  The 2003 decision cannot be escaped, it added, simply because the “Hillary” movie is a feature-length film; it is “no different from buying an ‘infomercial’ on a broadcast network, as political candidates have done for years.  Like any other television advertisement, Hillary uses the power of the visual medium to promote a message.”  Offering it on Video on Demand only increases audience interest, it suggested.

The government implied that Citizens United had switched its attack to a broad challenge to corporate speech in political campaigns because it probably knew that its other arguments could not survive the McConnell precedent.  An effort to scuttle all federal regulation of corporate-financed electioneering is simply not presented as an issue by this case, the brief contended. The Court, it added, has repeatedly reaffirmed the government’s power in that context.

Finally, the U.S. brief mounted a full-scale defense of government authority to impose disclosure and disclaimer requirements on political expression by corporations (and unions), even if the underlying communications themselves do not fall within the reach of Section 203.

In the competition over amici support, Citizens United emerged with numerically greater support, coming mainly from conservative advocacy groups (ranging from the National Rifle Association to the Cato Institute). However, the appeal also picked up notable support from a liberal-leaning group, the Reporters Committee for Freedom of the Press.   The Reporters Committee argued that the District Court ruling would allow the government to “suppress a documentary that is objectively indistinguishable from other news media commentary,” and “removes this intuitive bright-line distinction that allowed journalists to do their jobs without fear of the criminal penalties associated with violating FEC regulations.”

The FEC garnered the support of the leading congressional authors of the 2002 Act, including the two whose names are often used as labels for that Act — Arizona Republican Sen. John McCain and Wisconsin Democratic Sen. Russell Feingold, along with their House counterparts, former Reps. Christopher Shays (Connecticut Republican) and Martin Meehan (Massachusetts Democrat).  Their brief contended that “the arguments advanced by Citizens United threaten to undo much of what they accomplished in achieving the enactment of BCRA, to roll back long-standing provisions” of federal campaign finance law, and “even to jeopardize statutes requiring disclosure of corporate and union political and lobbying expenditures outside the field of candidate elections.”

Analysis

Citizens United, as its case approached oral argument, was going for a maximum victory — a sweeping rejection of congressional authority to regulate campaign spending by corporations (and, perhaps, by labor unions, too).  Its brief thus seems quite audacious.  But it may not turn out to be unrealistic. Just about two years ago, four dissenting Justices lamented that a majority of the Court had — at least by implication — overturned the 2003 decision in McConnell v. FEC, at least in the part upholding the ban on “electioneering communications.”  That was their protest to the 5-4 ruling in FEC v. Wisconsin Right to Life.

And, in fact, three members of the Court in the majority — Justices Antonin Scalia, joined by Justices Anthony M. Kennedy and Clarence Thomas — said they would cast aside that ruling, as well as the 1990 decision in Austin v. Michigan State Chamber of Commerce that allowed government regulation of corporate campaign spending.  In addition, Justice Samuel A. Alito, Jr., suggested that the time could come when the Court perhaps should reconsider McConnell and the validity of Section 203.  That might leave just one more vote to be gathered — that of a perhaps sympathetic Chief Justice John G. Roberts, Jr. — to work a profound change in the constitutional law of campaign finance.

If, however, the Court is not prepared to go that far, it may at least be strongly tempted to craft a broader set of exemptions from Section 203.  And perhaps it might seek to validate some form of public disclosure about who pays for election communications, even if it will not tolerate their banning.  This is a case where the quality of advocacy at the lectern could make a significant difference in how boldly the Court is prepared to act.  The key question, then, may be: are the Chief Justice and Justice Alito ready for some bold strokes?

Posted in Citizens United v. FEC, Uncategorized