“Hillary: The Movie” made its Supreme Court premiere Tuesday morning with reviews from the justices suggesting the case could lead to the banning of political books during election season and the possible collapse of the nation’s campaign finance law.
Citizens United, a conservative group that produced the documentary of the former Democratic presidential candidate and released the film during the primary season last year, refused to abide by the McCain-Feingold law that required it to include political disclosure language in movie advertisements.
Although the ads Citizens United planned to run did not express advocacy for or against Hillary Rodham Clinton, Malcolm L. Stewart, Justice Department deputy solicitor general, said the movie clearly did express opposition to her candidacy and therefore television ads promoting the film should abide by the campaign law.
“I saw it, it’s not a musical comedy,” Justice Stephen G. Breyer said.
Justice Anthony M. Kennedy noted that if a 90-minute film is covered by the campaign law as the government argued, “then the whole statute should fall.”
But the suggestion that the campaign law also bans any political message funded in part by corporations, including book publishers, raised further questions by the justices.
Justice Samuel A. Alito Jr. pointed out that most publishers are also corporations. “That’s pretty incredible,” he said. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned? The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?”
It would not be banned, Mr. Stewart said, but it must adhere to campaign laws.
Theodore B. Olson, arguing on behalf of Citizens United, countered that not adhering to the law brings a penalty of five years in prison.
The documentary was financed by $1 million in private donations, but only two donations for $1,000 came from corporations.
David Bossie, president of Citizens United, asked for a ruling from the Federal Election Commission as to whether the television ads must adhere to campaign finance laws. When told that nearly half of the time of a 10-second commercial must contain disclosures as to who financed the project, Mr. Bossie refused and challenged the government’s ruling in a lawsuit.
The Bipartisan Campaign Reform Act of 2002, commonly referred to as McCain-Feingold, requires such disclosures 30 days before a primary election and 60 days before the general election.
Mr. Stewart said that McCain-Feingold applies to cable, satellite and broadcast communication, which drew questions from the bench as to whether Kindle wireless reading devices, which download books, would be affected.
“It can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to raise funds to publish the book using its [political action committee],” Mr. Stewart said.
“It’s a 500-page book, and at the end it says, so vote for X, the government could ban that?” asked Chief Justice John G. Roberts Jr.
“Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision,” Mr. Stewart said.
Asked whether a corporation used its regular treasury funds to publish a book rather than seek political donations, Mr. Stewart said, “[I]f they didn’t, we could prohibit the publication of the book using the corporate treasury funds.”
The court is expected to make its ruling in June.
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