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The Supreme Court Opts to Decide Whether McCain-Feingold's Campaign Finance Regulations Were Properly Applied to a Film Attacking Hillary Clinton, and to Ads for the Film


Monday, Nov. 24, 2008

On November 14, the Supreme Court granted review in an interesting and important First Amendment case. The case concerns a film about then-presidential-candidate Hillary Clinton entitled "Hillary: The Movie," which was made available through cable TV video-on-demand (as well as in a few theaters), and the advertisements for that film.

The question before the Court is whether the McCain-Feingold campaign finance law was constitutionally applied to the film and its ads, or whether the First Amendment trumps that law in the context of this application.

Previously, a three-judge panel of the U.S. District Court for the District of Columbia rejected a motion for a preliminary injunction barring the Federal Election Commission (FEC) from enforcing McCain-Feingold against the filmmakers. (With respect to the film itself, the regulations barred certain corporate funding; with respect to the ads, the regulations required that they be accompanied by disclosures.) The panel reasoned that the filmmakers were not likely to prevail on the merits a necessary component of the preliminary-injunction showing. Accordingly, it allowed the FEC decision to stand.

Now, the Supreme Court will decide whether the panel ruled correctly. The Court will very likely also set clearer guidelines for future elections regarding when McCain-Feingold can constitutionally be applied to full-length films and the advertisements promoting them.

Each of The Ads for "Hillary: The Movie" Fits McCain-Feingold's Definition of An "Electioneering Communication"

The ads for "Hillary: The Movie" were uniformly negative towards Hillary Clinton with the sole exception of an admission, in one ad, by conservative pundit Ann Coulter that Clinton looks good in a pant suit. After Coulter had damned Clinton with this faint praise, the ad followed up with a promise that the movie would cover everything else about Clinton implying that everything else would be far from praiseworthy. (For the full text of the three ads, see page 3a n.2 of the panel opinion.)

Unsurprisingly, just as the ads had suggested, the movie itself contained numerous opinions and arguments to the effect that Clinton would not make a good president. (For the three-judge panel's excerpts from the movie, see page 11a n.12 of its opinion.)

Had Clinton become the Democratic nominee, the filmmakers' plan was to broadcast the ads within the 30 days preceding the Democratic Convention, and the 60 days preceding the election. Under the language of the statute and related regulations, the ads would have qualified as "electioneering communications" simply because of their timing; because they "refer[red] to a clearly-identified candidate for Federal office"; and because they could have been viewed by more than 50,000 persons but, as I will explain below, the Supreme Court has wisely required that a fourth criterion also be fulfilled before McCain-Feingold can be applied.

The Problem with the Statutory Definition: Trading Off Neutrality for Overbreadth

On one hand, the statutory definition of "electioneering communication" might seem to be a laudable attempt to get away from government scrutiny of the content of particular messages: Just referring to a candidate clearly triggers the law, and arguably, it is a relatively objective matter whether or not a message clearly identifies a candidate. One might thus think that the statutory definition of "electioneering communication" is as neutral as it possibly can be--minimizing the threat that a partisan FEC might apply the law unfairly.

Unfortunately, however, the statutory definition's very refusal to look at ads' content -- beyond determining whether the ads clearly identify a candidate -- means that the statute sweeps very broadly, and inevitably will touch upon messages that are quite far from pure electioneering. Remember, all a message had to do, according to the statute, was to be broadcast to a sufficiently large audience shortly before a convention or election, and to clearly refer to a particular candidate.

For instance, suppose that George W. Bush had been running for re-election, and ads for the film "W." were appearing on television. Though the film is fictionalized, it would be difficult to deny that the ads clearly identified Bush. Thus, such ads could have been categorized as mere electioneering communications under the FEC's test -- though that label would have been extremely reductive.

Some readers may not be as troubled as I am by this result - reasoning that "W." is, at heart, an anti-Bush film that argues that he has been an unfit president. But "W." is just the tip of the iceberg. Again, assume that George W. Bush is up for re-election. Would the statutory electioneering rules also apply to ads for films that directly took issue with Bush Administration policies - such as "Rendition"? What about films concerning the plight of American soldiers returning from Iraq - such as "In the Valley of Elah"? I think most readers will agree that imposing federal regulations on fictional films like these -- even if they also act as policy critiques and thus as attacks on a candidate -- is too high a price to pay. In addition, I think most will agree that imposing such regulations with respect to nonfiction documentaries (or ads promoting them) would be outrageous.

Ultimately, then, the neutral-seeming phrasing of McCain-Feingold's language threatens to inhibit criticism of the government at the very time when we most need it: in the run-up to an election. And while this point is clearest with regard to a sitting president whose policies need to be closely scrutinized, it applies to other candidates too - especially those who are, or recently have been, sitting Senators or Governors.

The Supreme Court's Wise Decision to Narrow the Statutory Language

Fortunately, the Supreme Court -- after upholding McCain-Feingold itself, in McConnell v. FEC -- narrowed the statute's meaning in its 2007 decision in FEC v. Wisconsin Right to Life. There, the Court made clear that First-Amendment-protected speech can only be regulated under McCain-Feingold if it "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." In other words, McCain-Feingold cannot be applied to material that might reasonably be interpreted as a mere campaign ad, but might also reasonably be interpreted another way.

This language would protect, for example, the films "W.", "Rendition," or "The Valley of Elah" and ads for those films, if aired during a Bush re-election campaign. Although such ads could be interpreted as messages not to vote for Bush, they could also be interpreted as something very significantly greater than, and different from, a pure recommendation as to how to vote at the polling place.

The Lower Court Panel's Decision to Equate "Hillary: The Movie" With a Lengthy Campaign Ad

Interestingly, though, the Supreme Court's language in Wisconsin Right to Life did not prompt the three-judge lower-court panel to protect "Hillary: The Movie." Instead, the panel found that the film so consistently sent the "Don't vote for Hillary" message that it fell within even the Court's narrow language in Wisconsin Right to Life. In other words, the panel found that the entire film was, in effect, a lengthy partisan ad with the single purpose of convincing voters not to vote for Hillary Clinton for president. Even more strikingly, the panel held -- applying Wisconsin Right to Life's language - that the movie could not reasonably be interpreted in any other way.

In denying the validity of any other interpretations of the film, the panel went out on a limb - and it is a limb the Court may well chop off when it hears this case. The language in Wisconsin Right to Life seems to have been an attempt to get courts to be less aggressive in sweeping First-Amendment-protected material into McCain-Feingold's ambit. But the three-judge panel swept a full-length movie in, nonetheless.

The Court's decision to review the panel's ruling indicates to me that the Court may want to narrow its test even further, in its next decision in this area, to ensure that McCain-Feingold truly reaches only materials that are incontrovertibly campaign ads, and nothing more than or different from that.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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