Hillary the Movie: The Sequel at the Supreme Court

HILLARY THE MOVIE –
THE SEQUEL
AT THE SUPREME COURT

2009     90 minutes

**** (4 stars out of 5)

Drama

Starring: Theodore B. Olson (for Citizens United) and Floyd Abrams (for Sen. Mitch McConnell)

Costarring: Elena Kagan (for the FEC) and Seth P. Waxman (for Sen. John McCain)

Supporting Cast: the Justices of the Supreme Court

Producer: David N. Bossie                           Studio: Citizens United

Rating: M for Mature Audiences

This disturbing, powerful sequel to Wisconsin Right To Life v. FEC (directed and produced by Jim Bopp) and McConnell v. FEC premiered at the Supreme Court on Sept. 9 after the Court ordered new arguments at the end of its term in June.

Supreme Court legend Ted Olson, in a potentially award-winning performance (anticipate another nomination by the Republican National Lawyer’s Association for the Lawyer of the Year Award), took the starring role, defending the critical documentary about Hillary Clinton produced by Citizens United in 2007.

Citizens United was prohibited from advertising its documentary or providing it to cable subscribers in an “on demand” format by the villain of the piece, the Federal Election Commission. The heavies claimed that CU’s documentary and advertising was political speech intended to affect a federal election. Thus, CU would violate various provisions of federal election campaign law, including the Bipartisan Campaign Reform Act, or “McCain-Feingold” as all of the actors in this Washington melodrama call it.  All corporations, including nonprofit advocacy organizations like CU, are prohibited from spending any money on federal elections, whether directly as a contribution to a candidate or indirectly as an independent political expenditure.

As the lead actor, Olson was in an odd position. When he was the solicitor general during the Bush administration, he played the role of McCain-Feingold’s defender in the earlier production of McConnell v. FEC. However, in this appearance at the Supreme Court, he had switched sides and was now playing the First Amendment defender, attacking the same law as unconstitutional.

In a forceful soliloquy, Olson opened the show with a ringing denunciation of the government’s claim that “corporate speech is by its nature corrosive and distorting because it might not reflect actual public support for the views expressed by the corporation.” According to Olson, the government had admitted that this “radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs.”

In her first major studio appearance, ingénue Justice Sonia Sotomayor was soundly corrected by Ted Olson when she complained about the supposed lack of any record on some of the issues being raised by CU. As Olson pointed out, it is the government’s “burden to prove the record that justifies telling someone that wants to make a 90-minute documentary about a candidate for president that they will go to jail if they broadcast it.”

As Olson’s colleague and lead actor, Floyd Abrams’s performance was disappointing, definitely not up to the standards of his previous appearances. His difficulties kept his main message from coming through clearly — that when the Court is faced with a substantial and ongoing threat to freedom of expression, it should not look for a narrower basis to decide a case but should act boldly to protect the First Amendment rights of Americans.

In her debut performance before the Supreme Court (in fact, before any court), new Solicitor General Elena Kagan provided new fodder for the claim that she won her role due not to her lawyering skills, but to her friendship with the chief backer of the Department of Justice, President Obama,.

Her performance lacked depth and sophistication. She exhibited a very out-of-place law professor attitude towards the justices at first (I’m the professor, why are you students questioning me?). She had trouble handling the chief justice’s cross examination about the ever-changing positions the government has taken in this case to justify prohibiting the political speech of all corporations. She even asserted (you could almost see the liberals on the Court shuddering) that the Court should strike down a statute that violates the First Amendment only if it finds many applications of the law that are unconstitutional “as opposed to just a few.” This is quite a narrow view of the First Amendment that would allow the government to engage in substantial censorship, contrary to the language of the amendment and the Court’s precedents.

At one point Kagan was making a shareholder’s rights argument, i.e., that corporations should not be able to expend money on political activities because the shareholders may not agree with such activity. She again stumbled in her response to Justice Scalia’s point that this argument makes little sense since the overwhelming majority of corporations are small, sole proprietorships. The chief justice followed up with the observation that it is extremely paternalistic for the government to take the position that shareholders “are too stupid to keep track of what their corporations are doing and to sell their shares or object in the corporate context if they don’t like it.” Kagan’s only answer was that people (including her) are “too busy” to keep track of something like this. It got so bad that the liberal justices were tossing her leading questions to help her with her arguments.

Co-star Seth Waxman was only supposed to have a supporting role behind Kagan’s, but he was so good he upstaged the star. She was not ready for the big time — she should have come up through the studio system of making arguments in less substantial cases before she tried her hand in a major production like this one. In fact, Ted Olson’s rebuttal used her own arguments against her.

In a dramatic ending to his performance, Olson pointed out all of the ways that the government’s position in this case has changed as it felt the ground slipping out from under the FEC. First, the government now claims books would not be covered by the law. This is contrary to its position in March, when the government said Congress could even ban books if it wanted to extend the electioneering communications ban beyond broadcasts. Now suddenly the solicitor general said that the FEC had never gone after anyone for writing a book. Which is untrue — the FEC investigated George Soros for all of his “independent political activities” surrounding a book he wrote in 2004, The Bubble of American Supremacy: The Costs of Bush’s War in Iraq.

Second, the government changed its position on what type of corporation could be prohibited from engaging in political activity. It went from saying all corporations could be prohibited to saying that perhaps nonprofits like CU should not. And the government could not seem to decide on what basis it was justifying restricting the speech of corporations. It shifted from the claim that the corporation’s unfair aggregation of wealth distorts the political marketplace, to claiming it violates the rights of shareholders who may not agree with the corporation’s speech, to claiming it represents the danger of quid pro quo corruption.

The script lacked one dramatic element, although there were brief glimpses of it in the performances given by Olson and Abrams. When you step back from the technicalities of the law being discussed, you realize that this is still America.  This great democracy was born amid a raucous debate, in a time when pamphlets and broadsheets thundered their opinions, criticizing candidates, their views, their motives, and their family antecedents.

In America, we do not imprison people for making movies critical of presidential candidates. There were certainly various discussions of the “government’s interest” in censoring certain entities during the oral arguments. But there is no “government interest” that could possibly justify such a law, no matter how narrowly tailored it is.  As the chief justice rightly said, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

All in all, this was a performance well worth seeing. Like Harry Potter fans everywhere, we now have to await the actual end to the production. Hopefully, it will be a happy ending that will restore the right to engage in political speech and political activity that has been wrongfully taken from us by a far-too familiar villain: patronizingly arrogant Washington plutocrats who think they know what is best for all the rest of us.