January 15, 2008

Another Campaign Finance Case on the Fast Track to the Supreme Court?

On the heels of the Supreme Court's announcement a few days ago that it will hear a challenge the the "Millionaire's Amendment" to BCRA (McCain-Feingold), another case could soon be in front of the Court.

Today a three judge district court denied the request of a group, Citizens United, for a preliminary injunction barring the FEC from enforcing two BCRA rules. First, Citizens United wants to be able to use corporate funds in connection with showing an anti-Hillary Clinton movie on television in the period before the election. Second, Citizens United wants to be able to fund television advertisements for the movie (to be shown in movie theaters) without disclosing their donors.

The three-judge court opinion is very important as a first judicial precedent on two issues (issues which were recently considered by the FEC in a rulemaking before the FEC shutdown). First, the opinion sets forth its test of which "electioneering communications" count as the "functional equivalent" of express advocacy, which can still be subject to the corporate/union PAC requirement. On this score, the court writes:

    Citizens contends that The Movie is issue speech and, as it stated in oral argument, that issue speech is any speech that does not expressly say how a viewer should vote. The trouble is that the controlling opinion in WRTL stands for no such thing. Instead, if the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat. WRTL, 127 S. Ct. at 2667.

    The Movie does not focus on legislative issues. See id.; 11 C.F.R. § 114.15(b). The Movie references the election and Senator Clinton's candidacy, and it takes a position on her character, qualifications, and fitness for office. See id.; 11 C.F.R. § 114.15(b). Dick Morris, one political commentator featured in The Movie, has described the film as really "giv[ing] people the flavor and an understanding of why she should not be President." Dick Morris, Hillary's Threat, Address (Mar. 2007) (available at www.citizensunited.org/blog/?entryid=4563815). After viewing The Movie and examining the 73-page script at length, the court finds Mr. Morris's description to be accurate. 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.

On the disclosure point, the court rejected the argument that the WRTL test applies to disclosure questions.

The attorney for Citizens United is Jim Bopp, who was also the attorney for the plaintiffs in WRTL. In that case, too, Bopp lost in his request for a preliminary injunction in the trial court. He sought to have Chief Justice Rehnquist, as Circuit Justice, reverse the three-judge court. The Chief declined to do so, allowing the case to be decided on the merits at final judgment. (At final judgment, the three judge court sided with the government. Bopp appealed, and the Supreme Court remanded for additional analysis. The three judge court then split 2-1 in favor of plaintiffs, and the Supreme Court in a 5-4 decision, affirmed.)

I expect that Chief Justice Roberts will be asked to step in at this stage. It will be very interesting to see if he adopts the position of his predecessor and declines to do so, or whether, given that the Citizens United case concerns the meaning of his dispositive opinion in WRTL, he refers it to the entire Court to vote whether or not to consider the case this term. There's still some room on the April calendar to consider the case. My bet would be that the Chief will decline to take action at this preliminary stage.

Posted by Rick Hasen at January 15, 2008 05:53 PM