Free Speech: The Movie

Time for the Supreme Court to overturn McCain-Feingold.

March 26, 2009

Review & Outlook

Hillary Clinton had her silver screen moment in the Supreme Court on Tuesday, when the Justices heard a case that could determine the reach of campaign finance laws to control political advertising. The tone of the oral argument also hinted that five Justices on the Court may be increasingly leery of campaign-finance limits.

During the 2008 Presidential primaries, a nonprofit group called Citizens United produced a 90-minute documentary chronicling the exploits of then-Senator Clinton. Let's just say that "Hillary: the Movie" was not an endorsement. Because the film, and trailers for it, were scheduled to run in the heat of the race on cable TV, it ran afoul of campaign finance "reform" law.

Under the 2002 Bipartisan Campaign Finance Act, also known as McCain-Feingold, electioneering communications paid by corporations or unions that "expressly advocate the election or defeat of a candidate" cannot run within 30 days of a primary or 60 days of an election. Citizens United filed suit against the Federal Election Commission to assert its right to distribute the film.

In Citizens United v. Federal Election Commission, a federal district court agreed with the FEC that the ban on electioneering communications should just as reasonably apply to a 90-minute movie as to a two-minute advertisement. Writ large, that's scary news. According to Deputy Solicitor General Malcolm Stewart, who argued the case, the government could theoretically regulate other forms of pre-election corporate speech as well, including books and the Internet.

"That's pretty incredible," said Justice Samuel Alito. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" Yes, Mr. Stewart said, if a corporation or union were paying for it. It would be possible to "prohibit the publication of the book using the corporate treasury funds."

With Chief Justice Roberts, Justice Alito has previously taken a cautious, piecemeal approach to campaign finance law. But as the current case shows, McCain-Feingold is a blunt instrument that gives federal bureaucrats the power to decide what kind of campaign advertising is allowed during an election. If "Hillary: the Movie" isn't allowed, then Michael Moore's documentaries should be banned, and newspaper endorsements would also be suspect despite a specific carve-out in the law. If newspapers didn't have that carve-out, then maybe so many editors wouldn't cheerlead for this kind of law.

McCain-Feingold is a frontal assault on political speech, and President Bush's decision to sign it while claiming to dislike it was one of the worst moments of his eight years in office. Citizens United gives the Justices a new opportunity to chip away at this attack on the First Amendment, and even better if they use it to declare the whole thing unconstitutional.