On the surface, the 90-minute documentary that the conservative group Citizens United produced on Hillary Rodham Clinton late in 2007 appeared aimed at derailing her front-running campaign for the Democratic presidential nomination. But “Hillary: The Movie” was also aimed at a second target: federal campaign finance provisions that limited the rights of corporations to spend money to influence congressional or presidential elections.
The video, never widely distributed, played no part in the demise of Clinton's candidacy. But a legal challenge sparked by the documentary resulted more than two years later in a sweeping Supreme Court decision, Citizens United v. Federal Election Commission, which freed corporations from any restrictions on using their own money for independent spending in federal, state or local political campaigns.
Founded in 1988 by Republican activist David Bossie, Citizens United had grown two decades later into a $12 million organization that had produced overtly conservative films on a variety of topics. Bossie, who had worked on a congressional investigation of President Bill Clinton in the 1990s, decided in 2007 to take on Hillary Clinton's quest for the presidency.
Completed in December, the documentary opened by describing Clinton as “steeped in sleaze” and linked her to claimed abuses during her husband's presidency. It also criticized Clinton's record as a senator from New York. With the video in the can, Bossie began plans for in-theater screenings, DVD sales and distribution on a video-on-demand channel. Short commercials were prepared to promote the video.
The plans ran afoul of provisions in the Bipartisan Campaign Reform Act (BCRA), the 2002 law also known as the McCain-Feingold Act after its principal Senate sponsors: John McCain, R-Ariz., and Russell Feingold, D-Wis. BCRA prohibited corporations from helping to pay for “electioneering communications,” defined as radio or television commercials referencing a candidate for federal office around the time of a primary or general election.
Citizens United was itself organized as a nonprofit corporation and had also accepted some corporate funding for the video. To preempt any enforcement of BCRA's requirements, Citizens filed suit against the Federal Election Commission (FEC) in federal court in Washington. The suit did not ask that the provisions be invalidated, only that the court rule that the provisions could not be constitutionally applied to the movie or the planned advertisements.
Citizens contended that the video was exempt from the electioneering provision because it did not expressly call for Clinton's defeat. It also argued that disclosure of donors required under the law would expose them to retaliation. Under BCRA's provisions, the suit was tried before a three-judge district court, which sided with the FEC in ruling that the video amounted to express advocacy against Clinton and could not be shown on the video-on-demand channel because of the corporate funding.
The case reached the Supreme Court a year later — in March 2009 — with a new lawyer, Theodore Olson, representing Citizens United. Olson, who as U.S. solicitor general had successfully defended BCRA before the court in 2003, argued that the law was aimed at “short, punchy ads,” not feature-length documentaries. Some liberal justices asked how the court could draw a line.
But Olson's adversary, deputy solicitor general Malcolm Stewart, faced stronger doubts from conservative justices when questioning led him into a reply that the government could go so far as to prohibit corporate funding of a book even if it contained only one sentence advocating a vote for or against a candidate. “That's incredible,” Justice Samuel A. Alito Jr. said.
The justices kept the case under advisement for more than three months and then requested a new round of arguments specifically addressing whether to overrule the 2003 decision upholding BCRA, McConnell v. FEC, as well as the court's 1990 decision, Austin v. Michigan State Chamber of Commerce, upholding state bans on corporate spending on elections. In the new round of arguments, in September, conservative justices, including Chief Justice John G. Roberts Jr., seemed intent on a broad ruling.
The 5-4 decision, announced on Jan. 21, 2010, rejected several possible narrow grounds to rule for Citizens United before striking down BCRA's limits on corporate spending and overruling the two precedents.
Supreme Court Justice Anthony M. Kennedy wrote the majority opinion in Citizens United. (AFP/Getty Images/Chip Somodevilla)
For the majority, Justice Anthony M. Kennedy said independent campaign spending could not be restricted on the same anti-corruption grounds used to limit direct campaign contributions. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” he wrote.
Kennedy similarly rejected two other justifications for a ban: protecting shareholder interests or preventing the “distorting effects” of spending by wealthy corporations. And he rejected as impractical and burdensome the alternative of allowing a corporation to establish a separate political action committee with voluntary contributions to pay for political activities.
In a 90-page dissenting opinion, Justice John Paul Stevens excoriated the conservative majority for passing over narrower grounds for a decision and for overturning precedents. The decision, he said, would “undoubtedly cripple the ability of ordinary citizens, Congress and the States to adopt even limited measures to protect against corporate domination of the electoral process.”
— Kenneth Jost