SCOTUS Reviews “Hillary” the Movie

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Okay, here’s another constitutional question about which I am no authority but sure find interesting. Here’s the link to the NYT and Adam Liptak’s article today called “Supreme Court to Revisit ‘Hillary’ Documentary”. It’s high drama for the court because this basically pits first amendment rights against campaign funding. It’s also pitting interest groups that are usually allies against each other and has made strange bedfellows of the NRA and the ACLU. If the Supreme Court could actually pick away at how Corporations fund political campaigns this day and age I would be relieved, but of course not if it violates the First Amendment. So SCOTUS has to determine the fate of the baby and they’re coming back from their summer vacation early to do so. We also have some increased drama in that the court itself since it as polarized as the country itself and definitely the interest groups that are involved in providing huge campaign donations. I’m intrigued.

The case, which arises from a minor political documentary called “Hillary: The Movie,” seemed an oddity when it was first argued in March. Just six months later, it has turned into a juggernaut with the potential to shatter a century-long understanding about the government’s ability to bar corporations from spending money to support political candidates.

The case has also deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate campaign spending is a threat to democracy.

At issue is whether the court should overrule a 1990 decision, Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. Re-arguments in the Supreme Court are rare, and the justices’ decision to call for one here may have been prompted by lingering questions about just how far campaign finance laws, including McCain-Feingold, may go in regulating campaign spending by corporations.

The argument, scheduled for Sept. 9, comes at a crucial historical moment, as corporations today almost certainly have more to gain or fear from government action than at any time since the New Deal.

The court’s order calling for re-argument, issued in June, has generated more than 40 friend-of-the-court briefs. As a group, they depict an array of strange bedfellows and uneasy alliances as they debate whether corporations should be free to spend millions of dollars to support the candidates of their choice.

The American Civil Liberties Union and its usual allies are on opposite sides, with the civil rights group fighting shoulder to shoulder with the National Rifle Association to support the corporation that made the film.

To the dismay of many of his liberal friends and clients, Floyd Abrams, the celebrated First Amendment lawyer, is representing Senator Mitch McConnell of Kentucky, the Republican leader, a longtime foe of campaign finance laws.

“Criminalizing a movie about Hillary Clinton is a constitutional desecration,” Mr. Abrams said.

Most of the rest of the liberal establishment is on the other side, saying that allowing corporate money to flood the airwaves would pollute and corrupt political discourse.

“This is rough business,” said Fred Wertheimer, a veteran advocate of tighter campaign regulations. “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

A lower court agreed with the F.E.C.’s position, saying that the sole purpose of the documentary was “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.”

So, is it a long form political ad or not? Is the trailer one and should it be aired on TV? I put the movie trailer up (try not to get mad when you watch it) and we can play guess what SCOTUS decides. Of course, this will be the first decision for newly appointed Justice Sotomayor if she does deliberate on this case. There is some doubt she will since she missed the first hearing.

It’s going to be an all around interesting SCOTUS season. I’m not even going to venture a guess here because Damn it Jim! I’m an economist, not a lawyer! However, I’d like to think we could get the Supreme Court to give us campaign finance reform since Congress will never do it. Still, what that might look like could possibly be even worse given the people on the court. Who knows at this point? Any one want to handicap this decision?

Here’s a shorter version of the trailer for TV release.

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