On Tuesday, the Supreme Court heard oral argument in Citizens United v. FEC, which presents the question whether the McCain-Feingold law (or "BCRA" for Bipartisan Campaign Reform Act) validly applies to forbid the use of general treasury funds of corporations and labor unions for such political documentaries as Hillary The Movie. Citizens United, a non-profit corporation, sued the FEC to enjoin the enforcement of the law against its film, which the 3-judge federal district court that heard the case described as follows: "[Hillary] The Movie is susceptible of no other interpretation than 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. [Hillary] The Movie is thus the functional equivalent of express advocacy." (The district court opinion is available here; other documents in the case are available here.)
Press reports (e.g., here and here) indicate that the Justices gave Deputy Solicitor General Malcolm Stewart a chilly, even incredulous reception, suggesting that this may be a classic case of asking for a whole loaf and getting nothing, where, it is assumed, asking for a half a loaf might have yielded half a loaf, or at least a decent-sized slice. In asserting the power of the government to ban a 90-minute documentary because of its funding source, the reports suggest, Stewart went so far as even to alienate those Justices (e.g., David Souter) who generally vote to uphold campaign finance restrictions.
That's quite possibly true, but it's not clear what Stewart's other options were. BCRA by its terms would undoubtedly apply to Hillary The 30-Second Spot. Why should the fact that the actual film is 180 times as long make a difference, assuming the district court was correct in characterizing the documentary as indeed an extended infomercial urging voters to oppose then-Senator Clinton's bid for the White House?
The answer, I suppose, is that it would be difficult to draw a line between movies with a political perspective that would seem to be relevant to how people ought to vote (e.g., Fahrenheit 9/11) and feature-length campaign ads. It would be highly problematic to forbid the use of general corporate funds for all films with political content (in the election period as defined by BCRA), and so protection of Hillary The Movie is the price we would have to pay for protection of other expression.
That may well be right, but again, it's not clear that Stewart could have made this point without conceding that BCRA is unconstitutional as applied to Hillary The Movie. Nothing in BCRA itself suggests that there is a time limit for its restrictions, and if the Court chooses to find that the First Amendment imposes one, it will be a nice task of saying what it is: 30 minutes? 10 minutes? Accordingly, the government defended BCRA's application to Hillary The Movie in the only way that seems realistic---by characterizing it as a highly unusual 90-minute political ad that urged voters to oppose the Clinton candidacy. If that argument fails, it won't be for bad lawyering.
Posted by Mike Dorf