Hillary the Movie: The Sequel at the Supreme Court




2009     90 minutes

**** (4 stars out of 5)


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.