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Swift ruling sought on campaign ads

A conservative advocacy group, Citizens United, asked the Supreme Court on Tuesday to take up quickly and decide during the current Term a constitutional challenge to limits on its planned broadcast of ads promoting a movie about Democratic Presidential candidate Hillary Rodham Clinton. Tbe case may also affect promotion of a planned movie about another Democratic candidate for the White House, Barack Obama.  A three-judge District Court in Washington refused a week ago to clear the way for unrestricted airing of three ads that promote the first film, “Hillary: The Movie” — a production that the District Court concluded amounts to a declaration that New York Sen. Clinton is not fit for the presidency so voters should not support her.  A film that is similar is being prepared about Illinois Sen. Obama, to be ready in June.

Because the case is filed under a special federal campaign finance law, an appeal goes directly to the Supreme Court, with a mandate under the law to act speedily.  The new appeal, a jurisdictional statement titled Citizens United v. Federal Election Commission (docket 07-953), raises three questions:  May challengers bring “as-applied” lawsuits against requirements that sponsors of campaign ads disclose sources of money to pay for the ads, and disclose who provided the content of the ads? Does federal campaign finance law even apply to this type of promotional ad for a movie about a candidate? Was the District Court wrong in failing to block enforcement of those requirements while the court challenge goes on?

The jurisdictional statement can be downloaded here, the appendix including the District Court opinion is here, and the motion to expedite is here.

Lawyers for Citizens United asked the Court to consider the case at its Feb.15 Conference.  To make that possible, they urged the Court to seek a response from the FEC by Feb. 1.  “Because the issues presented are purely legal questions that have already been thoroughly briefed below, the expedited schedule should not be burdensome to the FEC,” the motion to expedite contended.

The motion asked that briefing on the merits be completed by 2 p.m. on April 11 — presumably, in time to be heard by the Court during the April sitting (the final one scheduled for the Term) that opens on Monday, April 14.  The Court has already chosen 12 other cases to be heard during its April session, but it is not necessarily limited to that number.

Citizen United’s counsel said that, if the case is not reviewed and decided promptly, “Citizens United will forever lose the opportunity to broadcast its ads in the most effective times and places. Thus, the [District Court’s] denial of the preliminary njunction is the equivalent of a final judgment and expedition is appropriate.”  Although the lower court ruling only involved denial of a preliminary injunction to permit the ads, and thus did not issue a final decision, as such, the new appeal argued that this is still the kind of campaign finance dispute that federal law mandates be heard on an expedited schedule.

The appeal does not seek review now of the District Court’s refusal to lift federal restrictions on when the movie about Sen. Clinton can itself be aired on radio and television. Federal campaign law bars “electioneering communications” from radio and TV during the periods before primary and general elections.  The presidential campaign is now fully in swing in the primary season.  Citizens United has already released the movie to other outlets, and wants to promote it to the public with the three ads that are involved in the new appeal.

The appeal contends that the promotional ads, while they meet the federal law’s definition for “electioneering communications,” they are a form of speech protected by the First Amendment from requirements like the disclosure and “disclaimer” provisions regarding campaign ads.   The appeal argues that the FEC in December adopted an expansive view of its authority to regulate not only speech directly about candidate elections, but “activity that attempts to sway public opinion on issues.”  This, the appeal asserts, amounts to a claim of authority over “all issue advocacy” in direct violation of the First Amendment.

Here is the way the appeal describes the Clinton movie: “It includes interviews with numerous individuals and many scenes of Senator Clinton at public appearances.  It is about 90 minutes in length.  It does not expressly advocate Senate Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency, and her presidential bid.”